Forum Selection Clauses and Subject-Matter Jurisdiction
The forum selection clause is the Swiss Army Knife of transnational litigation. It may be used to obtain personal jurisdiction over a defendant who otherwise lacks any connection to the chosen jurisdiction. It may supply a reason for dismissing a case filed in a jurisdiction other than the one named in the clause. It may be deployed to…
Continue ReadingDim Sum Bonds, Panda Bonds, and Dispute Resolution
China’s push to internationalize the renminbi (RMB, or yuan) since 2008 has led to the growing share of RMB-denominated bonds in the international bond market. So-called “panda bonds” and “dim sum bonds” are variants of RMB-denominated bonds. Panda bonds are onshore RMB debt issued in China by entities domiciled outside mainland China. Overseas issuers use…
Continue ReadingArizona Supreme Court Rejects the “Closely Related” Doctrine
When may a litigant take advantage of a forum selection clause in a contract that he never signed? This is a question that has attracted considerable attention from the courts (and on this blog). Historically, a non-party was covered by a clause only when permitted under such doctrines as assumption, agency, piercing the corporate veil,…
Continue ReadingBook Launch for Hague Convention on Choice of Court Agreements
The 2005 Hague Convention on Choice of Court Agreements entered into force ten years ago. As regular readers will know, the United States has signed but not (yet) ratified the Convention. Were the United States to do so, it would mark a significant (and positive) change in the U.S. approach to the interpretation and enforcement…
Continue ReadingSDNY Grants Anti-Suit Injunction Against TV Azteca
For the past several years, parallel litigation has been ongoing in Mexico and the United States between the Mexican media conglomerate TV Azteca, S.A.B. de C.V. and The Bank of New York Mellon (BNY), the Indenture Trustee for a series of TV Azteca’s unsecured notes. Two weeks ago, Judge Paul G. Gardephe (SDNY) granted BNY’s…
Continue ReadingLimits on Damages for Breach of a Forum Selection Clause
Tanya Monestier and I recently posted a draft of a new paper, Limits on Damages for Breach of a Forum Selection Clause, that discusses an important issue at the intersection of contract law and conflict of laws—when it is appropriate to award damages for breach of an exclusive forum selection clause. We build on Tanya’s…
Continue ReadingOpting Out of Federal Law II: Foreign Choice-of-Law Clauses
In a prior post, I examined when a choice-of-law clause selecting the law of a U.S. state may be used to avoid federal laws. In this post, I consider whether a choice-of-law clause selecting the law of a foreign country may be used to accomplish this same goal. The post first examines situations where the…
Continue ReadingPersonal Jurisdiction, Consent, and the Law of Agency
I have long argued – in articles, blog posts, and amicus briefs – that it violates due process to invoke a forum selection clause to obtain personal jurisdiction over a defendant who was not a party to the agreement in which the clause appears. This position has not yet achieved universal acceptance. The state courts in…
Continue ReadingCalifornia Supreme Court Narrows Grounds for Non-Enforcement of Foreign Forum Selection Clauses
On July 21, 2025, the California Supreme Court issued its first opinion in many years addressing the enforceability of a forum selection clause. In EpicentRx v. Superior Court, it held that the fact that the court named in the clause did not allow for jury trials was not a valid basis for declining to enforce…
Continue ReadingMicrosoft Contract Day 2025!
Two years ago today, I authored a post titled “Microsoft’s Dispute Resolution Provisions Are a Mess.” I argued that the “Jurisdiction and Governing Law” language in the form purchase order used by Microsoft and its subsidiaries in 109 countries around the world was “incoherent.” My goal in writing the post was to inspire/shame Microsoft –…
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