Reconciling Forum-Selection and Choice-of-Law Clauses

9 Pages Posted: 1 Feb 2020 Last revised: 14 Feb 2020

Date Written: January 7, 2020

Abstract

When a contract includes both a forum-selection clause and a choice-of-law clause, which sovereign’s law governs the forum-selection clause? Does the seised court first apply its own law to the forum-selection clause or does it look first to the parties’ chosen law to enforce and interpret the forum-selection clause? It is a chicken-or-egg conundrum.

On the basis of case law and policy arguments, I argue that lex fori governs the enforceability and validity of the forum-selection agreement. But the whole chosen law, if there is a choice-of-law clause, or the whole law of the chosen court, if there is no choice-of-law clause, should apply to interpretation or construction of the forum-selection agreement.

Keywords: forum-selection clause, choice-of-law clause

JEL Classification: K40, K12

Suggested Citation

Clermont, Kevin M., Reconciling Forum-Selection and Choice-of-Law Clauses (January 7, 2020). American University Law Review Forum, 2020, Cornell Legal Studies Research Paper No. 20-04, Available at SSRN: https://ssrn.com/abstract=3515572

Kevin M. Clermont (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States
607-255-5189 (Phone)
607-255-7193 (Fax)

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