Jurisdiction Provisions, Part 4: Using Convenient-Forum Provisions Instead of No-Objecting-to-Inconvenient-Forum Provisions

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 “no-objecting-to-inconvenient-forum provisions.”

You could use in such provisions the phrase forum non conveniens, but that choice, besides demonstrating to the world that you’re a legalistic ponce, would be a poor choice for purposes of federal courts: “Because forum non conveniens and transfer under Section 1404(a) [regarding transfer of venue in federal courts] apply in different contexts, engage different inquiries, and lead to different results—dismissal versus transfer—it is preferable that the term ‘forum non conveniens’ not be employed in discussing motions to transfer.” Charles Alan Wright & Arthur P. Miller, Federal Practice and Procedure § 3828 (Helen Hershkoff ed., 4th ed. 2015) (“Wright & Miller).

They’re Relevant

No-objecting-to-inconvenient-forum provisions aim to prevent a litigant from using inconvenience as a basis for bringing a dispute in a court other than, or transfering venue from, a court specified in the contract. But here are some issues to consider.

One issue is that arguably, no-objecting-to-inconvenient-forum provisions are redundant: if a contract says that parties may bring disputes in a given court, it’s implicit that it wouldn’t be inconvenient to do so. Some caselaw supports that proposition, as “some federal courts have held that the presence of a forum selection clause prevents a party from asserting its own convenience as a reason supporting its transfer motion in contravention of the agreement.” Wright & Miller § 3854.1; see, e.g., Calix-Chacon v. Global Intern. Marine, Inc., 493 F.3d 507, 515 (5th Cir. 2007) (“A forum selection clause is a contractual waiver of the right to seek transfer or dismissal based on the parties’ own inconvenience.”).

But it appears that plenty of courts have ascribed significance to no-objecting-to-inconvenient-forum provisions. Selected at random, here’s what one court said:

Those cases, however, are inapt in light of the parties’ express waiver of objections regarding whether New York would be an inconvenient forum. Specifically, the Agreement provides that “each [party] … hereby waives any claim or objection it may have to such forum [i.e., New York] based on the principle of forum non conveniens, and each of them acknowledges that such forum is and would be a convenient forum.” Agt. § 21(g) (emphasis added). In light of the waiver and acknowledgement that New York is a convenient forum, the Court construes all private interest factors to weigh in favor of New York and considers the public interest factors only.

Westside Winery, Inc. v. Palm Bay International, Inc., No. C 18-2765 SBA, 2018 WL 4278665, at *3 (N.D. Cal. Aug. 3, 2018); see also WOF SW GGP 1, LLC v. Quasar Energy Grp., LLC, No. 3:18-CV-01475-AC, 2019 WL 3763768, at *6 (D. Or. June 3, 2019) (saying, with respect to language containing no-objecting-to-inconvenient-forum language, “Numerous other courts have interpreted substantially similar language in forum selection clauses and have determined such language waives removal rights after the action is filed”).

At some point I’ll have someone look into this more fully, but based on these preliminary findings, I think it would be best to address this issue.

But Courts Might Ignore Them

Caselaw suggests you can’t rely on no-objecting-to-inconvenient-forum provisions to prevent a litigant from raising inconvenience as an issue. This from Wright & Miller regarding the practice in federal courts (footnotes omitted):

[T]he existence of a forum selection clause cannot be dispositive on a motion for transfer. Congress prescribed in Section 1404(a) the factors to be considered by the district court on a transfer motion. Only one of these—the convenience of the parties—is properly within the power of the parties to affect by contractual agreement. With respect to this factor, therefore, some federal courts have held that the presence of a forum selection clause prevents a party from asserting its own convenience as a reason supporting its transfer motion in contravention of the agreement. But this does not end the inquiry. The other statutory factors—the convenience of witnesses and the interest of justice—are third-party or public interests that must be weighed by the district court. The Supreme Court and lower tribunals have concluded that these interests cannot be outweighed automatically by the existence of a private agreement between the litigating parties.

Therefore, a forum selection clause does not obviate the need for judicial analysis of the factors set forth in Section 1404(a) and does not necessarily determine the ruling on the motion for transfer. But “despite that other factors might conceivably militate against transfer the venue mandated by a choice of forum clause rarely will be outweighed by other Section 1404(a) factors.”

How Best to Express the Concept

Instead of using a no-objecting-to-inconvenient-forum provision, it would be simpler and clearer to say, in the manner of the provision at issue in Westside Winery that’s quoted above, that the forum in question is convenient. Here’s how I’d do that: Each party acknowledges that those courts would be a convenient forum. Let’s call that a “convenient-forum provision.”

One could get into a scintillating debate over whether being convenient is the same as not being inconvenient, but I don’t think that would be worthwhile.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

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