Texas, Insurance Contracts, and Foreign Forum Selection Clauses
A pair of recent Fifth Circuit cases — both involving damage to yachts — suggest that that court will enforce foreign forum selection clauses even when they appear in insurance contracts. This post first describes these cases. It then queries whether enforcing foreign forum selection clauses against Texas policyholders is, in fact, consistent with the…
Continue ReadingForum Selection Agreements as Indicators of Implied Choice of Law
Originally posted on the EAPIL blog on 31 August 2023, and currently updated in this blog. In a recent article, I explore what should be globally significant in a forum selection agreement as an indicator of the implied choice of law when the agreement omits a choice-of-law clause. This topic is in itself a very old one,…
Continue ReadingSplitting the Difference on the Closely-Related-and-Foreseeable Test
Over the past decade, the lower federal courts have repeatedly considered whether non-signatories to a contract are bound by a forum selection clause if they are so “closely related” to a signatory that it is “foreseeable” that they would be bound. In some cases, their decisions are defensible, as discussed here. In others, their decisions…
Continue ReadingParsing Invalidating Statutes (Part II)
In a prior post, I argued that the precise language used in state statutes purporting to invalidate choice-of-law clauses and forum selection clauses can have outsized effects in litigation. In this post, I continue this discussion by highlighting several statutes that purport to invalidate choice-of-law clauses in insurance contracts. Although these statutes all have the…
Continue ReadingParsing Invalidating Statutes (Part I)
In previous posts, I have written about how the precise language used in a choice-of-law or forum selection clause can prove consequential in litigation. In this post, I argue that the precise language used in state statutes purporting to invalidate these clauses can likewise have an outsized effect. There are hundreds of state statutes that…
Continue ReadingFinancial Hardship and Forum Selection Clauses
The U.S. Supreme Court has long held that a forum selection clause should not be enforced when “trial in the contractual forum will be so gravely difficult and inconvenient” that the plaintiff “will for all practical purposes be deprived of his day in court.” The financial status of the plaintiff is obviously a factor that…
Continue ReadingBinding Non-Signatories to Service-of-Process Clauses
I have previously blogged about attempts to bind non-signatories to choice-of-law clauses and forum selection clauses via the closely-related-and-foreseeable doctrine. My general take is that while it is sometimes appropriate to rely on this doctrine in cases involving forum selection clauses, it is never appropriate to rely on it to bind a non-signatory to a…
Continue ReadingSuing Atlantis
The Atlantis Resort in the Bahamas (“Atlantis”) is, by most accounts, a nice place to visit. There are water slides and pools, beaches and private cabanas. There is a casino and a spa and a nightclub and a comedy club. Over the past two decades, tens of thousands of American tourists have traveled to Atlantis….
Continue ReadingInconvenience, Forum Selection Clauses, and Afghanistan
The U.S. Supreme Court has long held that a forum selection clause should not be enforced when “trial in the contractual forum will be so gravely difficult and inconvenient” that the plaintiff “will for all practical purposes be deprived of his day in court.” In announcing this rule, the Court recognized that a legal right…
Continue ReadingMicrosoft’s Dispute Resolution Provisions Are a Mess
The Microsoft Corporation (“Microsoft”) and its foreign subsidiaries buy goods and services from companies all around the world. To streamline the contracting process, Microsoft has drafted a purchase order that contains standard terms and conditions. This purchase order – viewable here – is used by Microsoft and its subsidiaries in 109 different countries. This agreement…
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