- Forum selection clause
A forum selection clause in a contract with a
Conflict of Lawselement allows the parties to agree that any litigationresulting from that contract will be initiated in a specific forum. There are three types of clause:
*the reference might be to a particular
courtin a jurisdictionagreed upon by the parties (although, if the parties make a mistake as to the power of the nominated court to hear the matter, the civil procedures of the nominated jurisdiction will be applied to identify the appropriate court); or
*the clause might refer to a specific kind of
dispute resolutionprocess, such as mediation, arbitration(see arbitration clause, " lex loci arbitri"), or a hearing before a special referee; or
*the clause might refer to both, requiring a specific process to be carried out in a specific location.
choice of lawstage in a Conflict case requires the forum court to decide which of several competing laws should be applied to resolve the dispute. In this, there is an important distinction to be made between a forum selection clause and a choice of law clause. As an application of the public policy of freedom of contract, the parties are usually free to nominate the proper lawunder which all relevant disputes will be resolved. If there is an express selection, this choice will be respected so long as it is made bona fide, i.e. the subjective intention prevails unless the purpose is to:
*evade the operation of some mandatory provisions of a relevant law,
*there was an element of
fraudor duress or undue influenceinvolved in the signing of the contract, or
*there was some other evidence of
mala fides.But, if the parties do no more than nominate a forum, this is no more than an indication that they intend that forum's law to apply. There are many reasons why parties may select a forum (see a discussion of forum shopping):
*the forum has established significant expertise in the relevant areas of law, e.g. shipping, charterparties, carriage by air, etc.;
*the standard of judicial decision making may be high:
*there may be no corruption or other outside influence to affect the fairness of the judgments;
*the procedures may be efficient and minimise losses arising through any delay in arriving at a judgment;
*all the major witnesses may be resident within the jurisdiction making the forum convenient (see
forum non conveniens); etc.If the parties have selected a jurisdiction as the place for the resolution of a dispute, the implication is that the courts may nevertheless apply their "lex fori" which includes their general choice of law principles. Thus, in the ordinary course of legal events, the forum court may identify and apply a "foreign" law as the "proper law". The majority of professionally drafted contracts will address both issues, and contain clauses specifying both the forum and the law to be applied therein. The fact that the particular contract only specifies the forum therefore becomes highly revealing as implying that the parties intended to leave the choice of law issue to the forum nominated.
Forum selection clauses have been criticised by a minority of courts as improper attempts to divest them of
personal jurisdictionover the parties. Because of this, some jurisdictions refuse to give effect to these clauses, declaring them to be void as against public policy. However, most jurisdictions now recognise and enforce forum selection clauses, so long as the parties were acting in good faith.
The situation in the U.S.
United States Supreme Courthas upheld forum selection clauses on several occasions, and has suggested that they should generally be enforced. See " The Bremen v. Zapata Off-Shore Company", 407 U.S. 1 ( 1972); " Carnival Cruise Lines, Inc. v. Shute", 499 U.S. 585 ( 1991). The "Bremen" case, however, arose under the Court's admiralty jurisdiction, not under diversity of citizenship jurisdiction.
The state of New York has a statute expressly dealing with those circumstances under which a New York court may not dismiss a case on the grounds of
forum non conveniensif the parties' contract provides that the agreed upon venue is a court in New York.
Proposed International Convention
In 2005, the Hague conference on private international law issued a draft convention on the enforcement of choice of court clauses.
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