After doing these three posts about stuff you find in jurisdiction provisions, I have just one more topic to discuss, at least for now—namely this kind of thing: Each party hereby waives [or agrees not to assert] any objection that those courts represent an inconvenient forum [or inconvenient venue]. I’ve decided to call such provisions […]
Jurisdiction Provisions, Part 3: Don’t Use the Words “Jurisdiction” and “Venue” in Specifying Which Courts Would Resolve Disputes
As you will have noticed from this blog post and this blog post, I’ve been contemplating contract provisions that seek to specify which courts would resolve disputes between the parties. In the process, I’ve observed that people appear uncertain about how concepts of venue and jurisdiction relate to this issue. Inconsistent Terminology Some provisions use […]
Jurisdiction Provisions, Part 2: Stop Using No-Objecting-to-Jurisdiction Provisions!
For LegalSifter, I’ve been taking a closer look at jurisdiction provisions. I’ve decided that they represent a dose of concentrated fucked-upness on a par with governing-law provisions. The Context The first shoe dropped last year, in my post Stop Using Consent-to-Jurisdiction Provisions! It says you should stop using this sort of thing: Each party hereby […]
Giving Notice by Email Only? I’d Rather Not
In notices provisions in contracts, you say what’s required to give valid notice. Among other things, that involves specifying what one or more methods have to be used. The standard alternatives are giving notice by hand, by some form of mail, by FedEx or some equivalent, or by email. Recently I’ve considered providing for email […]
Force Majeure in the Time of Coronavirus: The Underlying Concepts and How to Express Them Clearly
A force majeure provision in a contract expresses that if something sufficiently bad happens that isn’t under a party’s control, it would be appropriate to suspend performance. Given the coronavirus pandemic, a handful of readers suggested that I write something about force majeure provisions. Initially I demurred—I thought I’d already had my say in previous […]
Exploring the Standard of Care in Services Agreements
Regular readers will know that I’m an advisor to LegalSifter, the artificial-intelligence-plus-expertise company that helps with review of the other side’s draft. In that capacity, I help decide what issues to look for, and I figure out how those issues are expressed in contracts. In doing that work, I get to explore systematically all sorts […]
Where’s the “Efforts” (or “Endeavours”) Outrage?
In July my law-review article on efforts (aka endeavours) provisions was published. (PDF here.) It’s about as contrarian as the subject matter allows. I beat the tar out of the conventional wisdom that the U.S. dealmaking establishment still clutches like a moth-eaten teddy bear. And I discuss in gruesome detail the preposterous positions adopted by […]
Reliance? Material Inducement? Wut?
The other day, while researching contract provisions that refer to reliance, I saw the following in a provision waiving jury trial (excuse the all caps; bold added): EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT THIS SECTION 8(C) CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY ARE RELYING AND […]
Jurisdiction Provisions, Part 1: Stop Using Consent-to-Jurisdiction Provisions!
Recently I devoted this post to John F. Coyle’s article on governing-law provisions. I’ve now gotten my hands on his recent article Interpreting Forum Selection Clauses (here). (I call them “jurisdiction provisions.” More on that later.) In John’s words, jurisdiction provisions are “contractual provisions in which the parties agree to litigate their disputes in a […]
Having Nonparties Release Stuff
I’m doing what I can to advance the cause, but we’re all fortunate to have Glenn West plugging away, posting his analyses at such a rate that I have a hard time keeping up. For his collected oeuvre, go here. Today’s post is inspired by something from his archives, this 2016 post about whether a […]