Microsoft’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…
Continue ReadingAre State Courts Biased Against Foreign Forum Selection Clauses? A Look at the Data.
In a prior post, I discussed some data on the practice of state and federal courts in the United States relating to the enforcement of forum selection clauses. This dataset also provides a useful opportunity to determine whether state courts are more likely to enforce a clause selecting another U.S. court than they are to…
Continue ReadingData on the Enforcement of Forum Selection Clauses
The United States legal system is immensely complex. There are state courts and federal courts, state statutes and federal statutes, state common law and federal common law. When I imagine a foreign lawyer trying to explain this system to a foreign client, my heart fills with pity. This feeling of pity is compounded when I…
Continue ReadingMicrosoft and Contractual Ambiguity
Microsoft Corporation (Microsoft) has a market capitalization of $2.14 trillion. It reported $204 billion in revenue in 2022. Its legal team is reportedly comprised of 1,500 people worldwide. Microsoft is the proverbial 800-pound gorilla in contract negotiations. A recent case suggests, however, that Microsoft has yet to master the art of drafting a forum selection…
Continue ReadingForum Selection Clauses, Non-Signatories, and Personal Jurisdiction in New York
As a general rule, the law will not vest contractual rights in (or impose contractual obligations upon) individuals who are not parties to an agreement. Over the past few decades, however, the courts have had occasion to relax this rule in the context of forum selection clauses. As previously discussed here and here and at…
Continue ReadingCrypto and Forum Selection Clauses
Over the past six months, the crypto industry has suffered setback after setback. In late 2022, the cryptocurrency exchange FTX collapsed. Its CEO and founder, Sam Bankman-Fried, has since been charged with wire fraud, money laundering and securities fraud, among other crimes. In 2023, the SEC filed a civil suit against persons involved in the…
Continue ReadingFloating Forum Selection Clauses
Most forum selection clauses refer specifically to the courts of a particular jurisdiction. Floating forum selection clauses are different. A floating clause does not reference any court by name. Instead, it ties the choice of forum to a mutable fact that can change after the contract is made. The possibility that the identity of the…
Continue ReadingAn Exemplary Decision
It is important to have high standards… especially when it comes to forum selection clauses, personal jurisdiction, and forum non conveniens. Since its inception, this blog has discussed a number of judicial decisions where these high standards were not fully met. One can find posts offering criticism here and here and here and here and…
Continue ReadingAdmiralty’s Influence on Transnational Procedure
Admiralty was the original site of transnational litigation in U.S. courts. Given the breadth of admiralty jurisdiction, the federal courts developed a number of procedural tools for balancing international comity and practical concerns in these international business disputes. Just because a foreign ship showed up in a U.S. port, for instance, didn’t mean a U.S….
Continue ReadingFlorida Man Seeks Enforcement of Forum Selection Clause
One of the internet’s more enduring memes is that of Florida Man. Florida Man is famous for “performing irrational, maniacal, or absurd actions in the U.S. state of Florida.” Over the years, Florida Man has attacked his neighbor with a tractor, been trapped in an unlocked closet for two days, fed iguanas to alligators in…
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