Kevin M. Clermont (Cornell Law School) has posted Governing Law on Forum-Selection Agreements on SSRN. Here is the abstract:
The judicial task of fixing on the proper law to govern a contractual choice-of-forum clause comprises an enigma. The key to its solution lies at the very heart of the subject, where one encounters its most celebrated riddle: Which law governs when the parties have also agreed to a choice-of-law clause, that is, does one first look at the forum-selection clause under the law of the seised forum or does one first look at the parties’ choice of law to apply the chosen law to the forum-selection clause? This chicken-or-egg mystery throws courts into contortions.
Case law, policy arguments, and doctrinal consistency all support applying lex fori to enforceability of the forum-selection agreement — but as to its interpretation, applying the chosen law or, in the absence of a choice-of-law clause, the chosen court’s law.
Don't you think Clermont must be right! Recommended.
