12 Willamette Journal of International Law and Dispute Resolution 185 (2004)
The United States is currently involved in negotiation of the Hague Convention on Exclusive Choice of Court Agreements, which would regulate the enforceability of forum-selection clauses in international contracts. That project - as well as the recent focus in globalization literature on more active judicial management of forum selection - draws attention to one unusual aspect of U.S. jurisdictional law: that dismissal on the basis of forum non conveniens is available even in cases arising out of contracts including negotiated forum selection clauses. This article examines the resulting tension between the right of contract parties to select a forum in advance of litigation and the right of judges to correct inappropriate forum selection. It argues that the availability of forum non conveniens in contract cases permits judges to overemphasize the appropriateness of a selected forum, diminishing the certainty and predictability necessary in international contracting. The article concludes that adopting the Convention - which would significantly curtail courts' ability to dismiss contract cases for reasons of convenience - would rationalize U.S. practice in this area.
Buxbaum, Hannah, "Forum Selection in International Contract Litigation: The Role of Judicial Discretion" (2004). Articles by Maurer Faculty. Paper 326.