Should Forum Selection Clauses in Agreements of International Websites Be Enforced? - A Proposed New Model

Abstract

Many international websites have online user agreements with forum selection clauses that refer all disputes to a foreign forum. This article discusses the question of whether and when such clauses should be enforced. On the one hand, they form part of a standard contract whose formulation is predetermined solely by the website, and when entered with a consumer reflect inequality of bargaining power that often result in de facto blocking the consumer’s access to courts. On the other hand, prohibiting altogether forum selection in e-commerce contracts would deprive the parties from enjoying the certainty and predictability that such an agreement otherwise would offer. It is important to establish appropriate rules for e-commerce contracts, which will provide sufficient protection for consumers on the one hand, without obstructing the development of e-commerce and the Internet on the other hand. This article develops a multidimensional model for handling forum selection clauses in online website agreements, that aims to balance between these opposing interests. This innovative model offers new criteria by adding clear considerations, with new specified parameters and criteria to be taken into account when considering whether or not to enforce the forum selection clause. These considerations help construct the judicial discretion regarding the validity and enforcement of forum selection clauses.

Keywords: Forum Selection Clauses, Choice Of Jurisdiction, Online User Agreements, E-Commerce, Online Consumer Contracts, Consumer Protection, Private International Law, Clickwrap Agreements, Browsewrap Agreements

JEL Classification: K12, K40,K41