Forum-Selection Clauses: Beyond the Contracting Parties
(2016) 12 J. Priv. Int't L. 26-59
27 Pages Posted: 6 Apr 2016
Date Written: September 20, 2015
Canadian courts have started to consider whether and in what circumstances a non-contracting party will be treated as bound by a forum selection clause. This article examines several possible reasons for holding non-parties bound by such clauses and considers how the analysis would unfold in three different contexts: taking jurisdiction, staying proceedings based on forum non conveniens, and obtaining an anti-suit injunction. It draws on recent American decisions which have used both a closely-related test and a global-transaction test to hold non-parties bound, considering the extent to which these tests might be adopted by Canadian courts.
Keywords: jurisdiction, forum-selection clause, jurisdiction agreement, submission, privity of contract, stay of proceedings, forum non conveniens, anti-suit injunction
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