Dangerous Foreign Courts
U.S. courts have long recognized that certain civil cases should not be litigated in the United States. Even when a U.S. court has jurisdiction, a case may still be dismissed for forum non conveniens if the court concludes that the case would be more appropriately heard in the courts of another country. This inquiry typically…
Continue ReadingAll I Want for Christmas (Forum Selection Clause Edition)
As the holidays approach, TLB editors have prepared lists of things that they wish courts in the United States would do differently on the subject of transnational litigation. In this post, I revisit one of my favorite subjects—forum selection clauses—to identify some reforms that would make my Christmas exceptionally merry. 1. Stop Asserting Personal Jurisdiction…
Continue ReadingBrazil’s New Law on Forum Selection Clauses: Throwing the Baby out with the Bathwater?
Brazil has changed its law on international forum selection clauses. In June this year, a new statutory provision came into force, adding, unexpectedly, new requirements for their enforceability. In this attempt to redistribute domestic litigation, the Brazilian legislator may well have thrown out the baby, international forum selection clauses, with the bathwater. The Recognition of…
Continue ReadingSisyphus and Forum Selection Clauses
In Greek mythology, Sisyphus was fated to push a boulder up an endless hill for all eternity. No matter how long he pushed, he and the boulder would never reach the top. I sometimes feel this way when I write about forum selection clauses. I research and blog about these provisions (a lot). I make…
Continue ReadingX Has a New Forum Selection Clause
The company formerly known as Twitter (“X”) has announced that it will adopt new Terms of Service (“TOS”) effective November 15, 2024. Among other things, the new TOS includes a new forum selection clause. The clause in the old TOS required lawsuits against X to be brought in California. The clause in the new TOS…
Continue ReadingPuerto Rico, Law 75, and Forum Selection Clauses
Many years ago, Puerto Rico’s legislature approved the Dealer’s Contract Act—known as Law 75—to protect local distributors. Law 75 provides that a principal dealing with a distributor in Puerto Rico may terminate a distribution agreement only for “just cause.” In an attempt to evade this law, out-of-state principals frequently write choice-of-law clauses and forum selection…
Continue ReadingA Troubling Decision in the EDNY
In the annals of troubling decisions relating to the enforcement of foreign forum selection clauses, a recent opinion, Gurung v. MetaQuotes, Ltd., by the U.S. District Court for the Eastern District of New York (Judge Orelia E. Merchant) warrants special mention. It raises the question whether any forum selection clause will ever be deemed unreasonable…
Continue ReadingThe Small Potatoes Problem with New York Forum Selection Clauses
New York has long sought to attract cases to its courts—and to generate business for New York lawyers—by enforcing New York forum selection clauses when they appear in commercial contracts worth at least $1 million that are governed by New York law. This policy is codified in New York General Obligations Law 5-1402. What happens,…
Continue ReadingA Troubling Decision in the Fifth Circuit
The Fifth Circuit has issued a number of opinions over the years relating to the enforceability of forum selection clauses in transnational cases. Its recent decision in Matthews v. Tidewater, Inc. is among the most troubling. Background The plaintiff, Marek Matthews, worked as a seaman and captain from 1982 to 2016 on offshore supply vessels…
Continue ReadingRecent Developments Concerning the Hague Judgments Convention and COCA
Although the United States signed Hague Convention on Choice of Court Agreements (COCA) in 2009, it has yet to ratify it. In this post, I report on some recent developments that offer a basis for (cautious) optimism that the United States may soon take the necessary steps to ratify both COCA and the Hague Judgments…
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