This essay explores the relationship between the courts and the legislature regarding enforcement of forum-selection clauses by using the US experience as its primary example. The US courts' recent vigorous enforcement of forum-selection clauses in international disputes may be overturned by Congress. In fact, the Supreme Court's decision indicating that forum-selection clauses are enforceable under the Carriage of Goods by Sea Act ("COGSA") may soon be legislatively overruled. This essay explores the potential limits on the durability of court decisions to enforce forum-selection clauses and offers some preliminary thoughts on the necessary conditions for long-term enforcement of these contractual provisions. Part I very briefly describes federal court decisions regarding the enforcement of forum- selection clauses in contracts. The term "forum-selection clause" is intended to include both arbitration clauses and clauses that provide for litigation in a particular country's courts. Part II considers conditions under which court decisions enforcing these clauses might conflict with the prevailing political equilibrium.
O'Hara, Erin Ann
"The Jurisprudence and Politics of Forum-Selection Clauses,"
Chicago Journal of International Law:
2, Article 5.
Available at: http://chicagounbound.uchicago.edu/cjil/vol3/iss2/5