A 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…
Continue ReadingMicrosoft’s Dispute Resolution Provisions Are (Still) a Mess
Exactly one year ago today, I authored a post titled “Microsoft’s Dispute Resolution Provisions Are a Mess.” In it, I argued that the “Jurisdiction and Governing Law” clause 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…
Continue ReadingAdditional Thoughts on Firexo
I have three thoughts to add to John Coyle’s insightful post on the U.S. Court of Appeals for the Sixth Circuit’s recent decision in Firexo, Inc. v. Firexo Group Limited: one on choice of law, one on jurisdiction, and one on forum selection. Choice of Law Even though the majority declines to apply the “closely…
Continue ReadingThe Easy Way and the Hard Way
In the law, there are often two paths to a given destination. There is the easy way. And there is the hard way. In a recent New Jersey case involving a forum selection clause, the plaintiff was ultimately successful in defeating the defendant’s motion to dismiss. But man, oh man… did the plaintiff do it…
Continue ReadingThe Sixth Circuit Tackles Forum Selection Clauses
When U.S. judges fight about forum selection clauses, they tend to fight about one of two things. First, they fight about whether a federal court sitting in diversity should apply state or federal law to determine whether a clause is valid and enforceable. Second, they fight about whether a non-signatory may be bound by a…
Continue ReadingFaux Forum Selection Clauses
In linguistics, a false friend (or faux ami) is a word from a different language that looks and sounds like a familiar word in English but, in fact, has a very different meaning. A classic example is the word “gift.” In English, the word means “present.” In German, the word means “poison.” These are not…
Continue ReadingImplied Jurisdiction Agreements in International Commercial Contracts
In an increasingly globalized economy, commercial transactions often involve business entities from different countries. These cross-border transactions present complex legal questions, such as the place where potential disputes will be adjudicated. To provide certainty, commercial parties often conclude ex ante agreements on the venue for dispute resolution by selecting the court(s) of a particular state. However,…
Continue Reading