You’ve heard by now that the Supreme Court’s decision in Atlantic Marine Constr. Co. v. United States District Court, No. 12-929 (U.S. Dec. 3, 2013) is a strong endorsement of a contractor’s right to choose the forum that will resolve disputes with subcontractors. We discuss the Court’s decision in an earlier post.
So you know that you can have a forum selection clause. But Atlantic Marine doesn’t answer the hard question, which is this—
How do you write a forum selection clause that will be reliably and economically enforced—without an expensive trip through the court system, perhaps even all the way to the Supreme Court?
Here are some basic points on drafting a forum selection clause, drawn from some of the dozens of reported court cases addressing them—