The Jurisprudence and Politics of Forum-Selection Clauses

By O'Hara, Erin Ann | Chicago Journal of International Law, Fall 2002 | Go to article overview

The Jurisprudence and Politics of Forum-Selection Clauses


O'Hara, Erin Ann, Chicago Journal of International Law


In the past three decades, the US Supreme Court and the lower federal courts have significantly increased contracting parties' freedom to choose the law and the forum that will be used to resolve their future disputes. This freedom to choose appears most important in the context of international commercial transactions, where the courts recognize a clear relationship between trade and contractual freedom. The sentiment was first strongly expressed by the Supreme Court in its landmark The Bremen v. Zapata Off-Shore Corporation1 decision:

Here we see an American company with special expertise contracting with a foreign company to tow a complex machine thousands of miles across seas and oceans. The expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts.2

These choice provisions also add value to contracts by clarifying the parties' rights and responsibilities, but again may be particularly important for international transactions:

Manifestly much uncertainty and possibly great inconvenience to both parties could arise if a suit could be maintained in any jurisdiction in which an accident might occur or if jurisdiction were left to any place where the Bremen or Unterweser might happen to be found. The elimination of all such uncertainties by agreeing in advance on a forum acceptable to both parties is an indispensable element in international trade, commerce, and contracting. There is strong evidence that the forum clause was a vital part of the agreement, and it would be unrealistic to think that the parties did not conduct their negotiations, including fixing the monetary terms, with the consequences of the forum clause figuring prominently in their calculations.3

Even when parties are not entitled to choose the law that governs their dispute, very often they are able to choose the forum in which their disputes will be resolved. IMAGE FORMULA5

Moreover, parties are more or less equally free to choose between arbitration and foreign courts to resolve their international disputes.

This essay explores the relationship between the courts and the legislature regarding enforcement of forum-selection clauses by using the US experience as its primary example. The US courts' recent vigorous enforcement of forum-selection clauses in international disputes may be overturned by Congress.4 In fact, the Supreme Court's decision indicating that forum-selection clauses are enforceable under the Carriage of Goods by Sea Act5 ("COGSA") may soon be legislatively overruled.6 This essay explores the potential limits on the durability of court decisions to enforce forum-selection clauses and offers some preliminary thoughts on the necessary conditions for long-term enforcement of these contractual provisions. Part I very briefly describes federal court decisions regarding the enforcement of forum-- selection clauses in contracts. The term "forum-selection clause" is intended to include both arbitration clauses and clauses that provide for litigation in a particular country's courts. Part II considers conditions under which court decisions enforcing these clauses might conflict with the prevailing political equilibrium.

1. ENFORCEMENT OF FORUM-SELECTION CLAUSES

The federal courts have spent the last few years grappling with the enforceability of foreign forum-selection clauses in bills of lading in international shipping. As explained below, the courts have moved from nearly universal nonenforcement of these clauses to fairly uniform enforcement. The shift in the legal treatment of these clauses was perhaps inevitable in light of the Supreme Court's developing jurisprudence of enforceability over the last thirty years. In part II, this essay will argue that although the federal court treatment fits very comfortably within this developing jurisprudence, the political equilibrium within the US (and perhaps several other countries) suggests that we can predict a legislative tilt back toward nonenforcement. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Jurisprudence and Politics of Forum-Selection Clauses
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.