Comments on: Covering the Bases in a Forum-Selection Provision http://www.adamsdrafting.com/2007/10/21/forum-selection-provisions/ Tue, 31 Jan 2012 01:23:03 +0000 hourly 1 http://wordpress.org/?v=abc By: RossK http://www.adamsdrafting.com/2007/10/21/forum-selection-provisions/comment-page-1/#comment-36055 RossK Sat, 02 Feb 2008 17:06:25 +0000 http://www.adamsdrafting.com/2007/10/21/forum-selection-provisions/#comment-36055 The thorny issue with a choice of law and forum clause is that nominating exclusive jurisidiction has the potential to cause problems for enforcing against a party that is resident in a different jurisdiction. My approach is to specify the law and then provide for non-exclusive jurisidction of my client's home jurisdiction. Better of course would be to reseach how an exclusive jurisdiction clause would be enforcable e.g. If my english client is trading with an american party and I specify english law and exclusive english courts how will I get on enforcing in America if I obtain judgement in England? The thorny issue with a choice of law and forum clause is that nominating exclusive jurisidiction has the potential to cause problems for enforcing against a party that is resident in a different jurisdiction. My approach is to specify the law and then provide for non-exclusive jurisidction of my client’s home jurisdiction. Better of course would be to reseach how an exclusive jurisdiction clause would be enforcable e.g. If my english client is trading with an american party and I specify english law and exclusive english courts how will I get on enforcing in America if I obtain judgement in England?

]]> By: Ken Adams http://www.adamsdrafting.com/2007/10/21/forum-selection-provisions/comment-page-1/#comment-10962 Ken Adams Mon, 22 Oct 2007 13:31:43 +0000 http://www.adamsdrafting.com/2007/10/21/forum-selection-provisions/#comment-10962 10803: My offering language providing for permissive jurisdiction shouldn't be taken as indicating that that's what I recommend. It simply happened to be the language that I had at hand. Ken 10803: My offering language providing for permissive jurisdiction shouldn’t be taken as indicating that that’s what I recommend. It simply happened to be the language that I had at hand. Ken

]]> By: 10803 http://www.adamsdrafting.com/2007/10/21/forum-selection-provisions/comment-page-1/#comment-10959 10803 Mon, 22 Oct 2007 13:23:00 +0000 http://www.adamsdrafting.com/2007/10/21/forum-selection-provisions/#comment-10959 Do most people offer up non-exclusive forums in their first draft? Other than ensuring (hopefully, as noted above) that there is one valid forum, why start with non-exclusive jurisdiction? Even if you use exclusive jurisdiction you still solve the "non-plaintiff" problem Stark mentioned. My standard first draft is exclusive jurisdiction in my home state, with waivers of forum non conveniens and improper venue. The two states where I'm admitted both allow and will respect this. See NY GOL 5-1401 and 5-1402, for example. My fallback position is "no home court advantage." I agree to bring any suit in the other party's forum and it will bring in mine, but each of us waives the defenses in both. This way we're equally disincentivized from litigating. Do most people offer up non-exclusive forums in their first draft? Other than ensuring (hopefully, as noted above) that there is one valid forum, why start with non-exclusive jurisdiction? Even if you use exclusive jurisdiction you still solve the “non-plaintiff” problem Stark mentioned.

My standard first draft is exclusive jurisdiction in my home state, with waivers of forum non conveniens and improper venue. The two states where I’m admitted both allow and will respect this. See NY GOL 5-1401 and 5-1402, for example.

My fallback position is “no home court advantage.” I agree to bring any suit in the other party’s forum and it will bring in mine, but each of us waives the defenses in both. This way we’re equally disincentivized from litigating.

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