Kevin M. Clermont
Volume 66, Issue 3, 643-74
The task of determining which law governs a contractual choice-of-forum clause is an enigma to courts. 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 a court first test 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. Prior commentators have opted for the chosen law. But differentiated cases, policy arguments, and doctrinal consistency all support applying lex fori to enforceability of the forum-selection agreement—while applying the chosen law as to the agreement’s interpretation or, in the absence of a choice-of-law clause, the chosen court’s law.