Report No. 193
Section 5 refers to 'Existing and future claims' and says:
"Section5: This Act applies to claims (1) accruing after the effective date of this Act; or
(2) asserted in a civil action or proceeding more than one year after the effective date of this Act, but it does not revive a claim barred before the effective date of this Act."
The Note further says that section 2 treats limitation period as substantive, to be governed by the limitations law of a State whose law governs other substantive issues inherent in the claim. This is true whether the limitation period of the substantively governing law is larger or shorter than that of the forum's law. This is based on the judicial trend: Heavner v. Uniroyal Inc, 63 NJ 130, 305 A.2d 412 (1973); Air Products & Chemicals Inc v. Fairbanks Morse Inc, 58 Wis 2d. 193, 206 NW (2d) 414 (1973) and Henry v. Richardson - Merrel Inc, 508, F 2d. 28 (3d Cir. 1975). In all these cases the forum State applied the other State substantive law even though the consequence would be to apply the other States' limitation period.
In section 3, the words 'governing conflict of laws' applies both to 'statutes' and 'rules of law'. This section treats all tolling and accrued provisions as substantive parts of the limitation law of any State whose law may be held applicable. They are part of that State's law as that State would apply it. The limitation period of another State, however, does not include its rules as to when an action is commenced. These rules are part of the procedural law of each forum State. The final clause in section 3 constitutes the standard means of avoiding renvoi problems.
Section 4 provides an 'escape clause' that will enable a Court, in extreme cases, to do openly what has sometimes been done by indirection, to avoid injustice in particular cases. It is not enough that the forum States' limitation period is different from that of the State whose substantive law is governing; the difference must be 'substantive', and the 'fair opportunity' provision constitutes a separate and additional requirement. In the year 2004, a Study Committee headed by Prof. Robert Pushaw submitted a Memorandum on the 1982 Act which the National Conference Commissioners on Uniform State Laws (NCCUSL) withdrew in 1999.
The Memorandum refers to the fact that under the 1982 Act, the substantive law would be substantive law of the State whose law governs the underlying claim. But in 1988, the American Law Institute rejected the above approach by providing that the substantive law should be determined by the law of the State with the most significant relationship to the limitation issue, regardless of which State's substantive law controls and then sets forth very specific rules that presumptively favour applying the substantive laws of the forum State, unless the shorter limit of another State would make more sense.
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