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 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 submits to the jurisdiction of those courts for purposes of any such proceeding.
Last night I reached the same conclusion about another standard component of jurisdiction provisions, what I’ve decided to call no-objecting-to-jurisdiction provisions. I’ve bolded the relevant language in the following examples:
The Company hereby waives any objection to such exclusive jurisdictionand that such courts represent an inconvenient forum.
Employee hereby voluntarily, unconditionally and irrevocably agrees and submits to the jurisdiction of the federal and state courts of the State of Washington and appellate courts from any thereof for any claim, action or dispute arising out of or related to this agreement, and waives and agrees not to assert any defense that any such court lacks jurisdiction, venue is improper, or the forum is inconvenient.
Why They Don’t Make Sense
Such provisions generally follow on the heels of something saying that one or more parties may bring a dispute in the courts of a specified jurisdiction. But it’s redundant to say in a contract No take-backs!—the whole point of contracts is that you’re making a binding commitment. If someone has committed to jurisdiction, they’ve committed to jurisdiction.
And if you want to address this concept once, the simpler and clearer way is to say where a party may bring a dispute, as opposed to using a no-objecting-to-jurisdiction provision.
If saying No take-backs! in contracts made sense, we’d see it used in every contract to bolster every other provision in that contract. (Incidentally, the same approach is on display in using a “covenant” not to sue for infringement of intellectual property instead of granting a nonexclusive license to that IP, but we’ll look at that some other time.)
I ran my argument by someone knowledgeable. They agreed that the language appears redundant, but they thought that because U.S. courts don’t like to let litigants sue for damages when one party breaches a jurisdiction provision, no-objecting-to-jurisdiction provisions might improving the odds of a contract party getting their fees covered if the other party ignores a jurisdiction provision.
For three reasons, I don’t find that convincing. First, it seems speculative. Second, it would be the height of legalistic sophistry to offer different remedies depending on whether a party violated a contract provision or violated a No take-backs! version of that provision. And third, if you want something in a contract, make it explicit instead of playing games! In other words, if you want to be awarded legal fees if someone ignores a jurisdiction provision, then say so (although that seems like a weird idea).
What’s Going On?
I remain the only person saying don’t use consent-to-jurisdiction provisions. And now I’m the only person saying don’t use no-objecting-to-jurisdiction provisions. I suspect that’s because I’m the only person who studies contract language from a semantics perspective instead of primarily looking at caselaw.
But this is the first time I’ve written about no-objecting-to-jurisdiction provisions. I’m prepared to have you set me straight on stuff!
(By the way, expect a part 3 soon, on provisions waiving inconvenient-forum claims.)