Bifurcated Forum Selection Clauses
When I was younger, I loved the Choose Your Own Adventure books. The reader was constantly asked to make decisions. Did you want to explore the basement of the haunted house? If so, turn to page 10. Or did you want to investigate the spooky noise coming from the kitchen? If so, turn to page…
Continue ReadingNew Paper on Forum Selection Clauses
Over the past three years, I have spent a lot of time trying to get a sense for when U.S. courts will and will not enforce forum selection clauses. Working with Katie Richardson — first as a law student, then as an associate at McGuire Woods, and finally as a clerk on the D.C. Circuit…
Continue ReadingThe Case for Attracting Litigation Business to the United States
U.S. state and federal courts routinely and reliably enforce “inbound” forum selection clauses (FSCs)—that is, if a party sues in a U.S. court designated by a contractual forum selection clause, courts will hear the case rather than dismissing on the basis of forum non conveniens. In a recent post, John Coyle urged federal actors to…
Continue ReadingContracting for U.S. Courts in Transnational Commercial Litigation
Among the most important provisions that litigators search for once alerted of a potential dispute are forum selection clauses embedded in a large number of modern commercial contracts. Over the past several decades, state legislators and the U.S. Supreme Court have increasingly enabled parties to litigate in U.S. courts, even for lawsuits with significant “foreign”…
Continue ReadingShould the Federal Government Seek to Attract Litigation to the United States?
U.S. courts have become significantly more hostile towards transnational litigation over the past two decades. Scholars such as Pam Bookman and Maggie Gardner have argued that a series of Supreme Court decisions—relating to the law of personal jurisdiction, forum non conveniens, international comity abstention, the presumption against extraterritoriality, and service of process, among others—have made…
Continue ReadingA Deeply Flawed Personal Jurisdiction Decision in the SDNY
When dealing with forum selection clauses, one of the most important—if unappreciated—distinctions is between inbound and outbound clauses. An inbound clause selects the court where the suit was filed. An outbound clause selects a court that is not the forum. Another important distinction is the one between exclusive clauses, which stipulate that suit must be…
Continue ReadingContractual Waivers of Foreign Sovereign Immunity
The Foreign Sovereign Immunities Act (FSIA) provides that foreign states are immune from suit in the United States unless an exception applies. An important and long-standing exception to immunity is consent (the more common term in international practice) or waiver (the term used in the United States). The FSIA provides that a foreign state shall…
Continue ReadingForum Selection Clause Roundup
Forum selection clauses play a critical role in much transnational litigation. Over the past several months, TLB has published six posts on forum selection clauses. In this post, I try to bring these writings together to show how they all form a coherent narrative. This post is not meant to serve as a substitute for…
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