The Comparative Value of Choice of Law and Forum Selection Clauses
Choice-of-law clauses and forum selection clauses routinely come before courts hearing transnational cases. A choice-of-law clause selects a law to govern the contract. A forum selection clause chooses a court in which to resolve disputes. These differences notwithstanding, the two clauses are often discussed in the same breath. Leading casebooks on conflict of laws examine…
Continue ReadingRecent Scholarship on Foreign Judgments
Michael Solimine recently posted an interesting paper exploring the connection between party autonomy, on the one hand, and the recognition and enforcement of foreign judgments, on the other. Solimine thoughtfully engages with the argument that private parties should be permitted to select, in advance, the law that will govern the recognition and enforcement of foreign…
Continue ReadingInterpreting Foreign Forum Selection Clauses
What law should a court use to interpret a forum selection clause selecting the courts of a foreign country when the contract also contains a choice-of-law clause selecting the law of that same country? A pair of federal court decisions—one from Illinois, and one from California—recently addressed this question. Neither of these decisions is likely…
Continue ReadingExclusive Forum Selection Clauses in the First Circuit
Forum selection clauses are complicated. Under the framework laid down by the U.S. Supreme Court in Atlantic Marine (2013), a clause selecting the courts of another jurisdiction should only be given effect in federal court when it is “contractually valid.” As part of the inquiry into contractual validity, a court must first interpret the clause…
Continue ReadingThrowback Thursday: Choice-of-Law Clauses Through the Lens of Contract
The academic literature on choice-of-law clauses may be usefully sorted into three boxes. Articles in the first box seek to ascertain when, exactly, the courts will enforce these clauses. This body of literature looks to case decisions, treatises, statutes, and works such as the Restatement (Second) of Conflict of Laws in an attempt to determine…
Continue ReadingAn Insightful Post on a Recent Case
Ted Folkman has a post over at Letters Blogatory discussing a case – CDM Smith v. Atasi – decided by the Federal District Court for the District of of Massachusetts in March 2022. The court first considers whether a judgment rendered by the labor courts of Saudi Arabia is enforceable in Massachusetts. It then goes…
Continue ReadingWhy Transnational Litigation?
The justiciability of Holocaust expropriation claims; treaty interpretation in international custody disputes; the adequacy of pleading the enslavement of children; accessing U.S. discovery for international arbitration; the availability of punitive damages for international terrorism; the immunity of international organizations before U.S. courts; how to serve process on a foreign state: The U.S. Supreme Court has…
Continue ReadingA Primer on Choice-of-Law Clauses
A choice-of-law clause is a contract provision that selects the law to govern the contract and claims relating to the contract.
Continue ReadingA Primer on Forum Selection Clauses
A forum selection clause is a contractual provision that selects a specific court to resolve disputes. When suit is filed in a court that is not the chosen forum, the clause may provide a basis for dismissal or transfer. When suit is filed in the chosen forum, the clause may provide a basis for the…
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