How Covid-19 May Have Rendered Defenses Against Forum Non Conveniens & Forum Selection Clauses Obsolete
“Forum selection clauses are enforced because they provide certainty and predictability in the resolution of disputes.” Under New York law, forum selection clauses are deemed prima facie valid. However, if a party demonstrates that the enforcement of the forum selection is unreasonable under the circumstances such that: (1) the clause was the product of fraud; (2) enforcement would be unjust or unreasonable; (3) proceeding with the contractual forum would be so difficult or inconvenient that for all practical purposes the non-enforcing party would essentially be deprived of their day in court; or (4) enforcement would go against public policy, then courts will not enforce the forum selection clause. For example, the New York Appellate Division found a forum selection clause unreasonable and thus invalid in a case where every aspect of the transaction took place in Minnesota but the forum selection specified New York as the forum, and the defendant would have incurred a substantial hardship to defend the case in New York.
This post was originally published on the Cardozo Journal of Conflict Resolution website on April 10, 2022. The original post can be accessed via the Archived Link button above.
Pomerantz, Joseph, "How Covid-19 May Have Rendered Defenses Against Forum Non Conveniens & Forum Selection Clauses Obsolete" (2022). CJCR Blog. 32.