SO CLOSE, YET SO FAR AWAY: Procedural Enforcement of Forum Selection Clauses in American Federal Courts AFTER ATLANTIC MARINE

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· 저자명 : 프리만, 트로이 크리스찬

초록

A forum selection clause (“FSC”) is a provision in a contract that allows the contracting parties to designate a particular state or court as the jurisdiction in which the parties will litigate disputes arising out of the contract and their contractual relationship. So as to provide some certainty about the forum for litigation to contracting parties, they will often include FSCs in agreements involving interstate or even international business transactions. Contracting parties feel negotiating such clauses is necessary, as personal jurisdiction and proper venue could be found to exist in various locations related to the underlying business activity and thus subject the parties to having to litigate in a forum that tactically disadvantages one party, requires higher litigation costs or for other reasons is viewed unfavorably by one or more parties.
In December 2013, the United States Supreme Court focused the spotlight on, and took significant steps in clarifying, the proper procedures for FSCs in American federal courts when it handed down its opinion in Atlantic Marine Construction Company, Inc. v. United States District Court for the Western District of Texas (“Atlantic Marine”). Given the clarifying and unifying qualities of the Atlantic Marine decision concerning enforcement mechanisms of FSCs, we will see that such decision brought us so close to being able to definitively end debates about proper FSC enforcement mechanisms; however, it left enough loose ends that the final resolution still appears to be far away from realization.
This paper discusses the state of FSC procedures in federal courts, focusing on both the matters clarified by Atlantic Marine as well as the issues that could still use clarifying when federal courts are confronted with enforcing FSCs. While Atlantic Marine serves as the point of departure, this paper discusses more broadly the current state of FSC enforcement rules and rulemaking.
Ultimately, this paper notes the improved state of affairs with respect to FSC enforcement procedures but also points out that there is a need for further clarification in certain areas, particularly with respect to the invocation of FSCs that necessitate dismissal of cases from federal court under forum non conveniens. A possibly more important conclusion that can be derived from the Atlantic Marine case and the state of affairs surrounding FSCs prior to, as well as after, such case was decided, is that policymakers in both the judicial and legislative branches failed to pay adequate attention to FSCs and how they should best be enforced in court under the Federal Rules of Civil Procedure after the Supreme Court opened the way for FSCs to be enforced via case law in 1972. Indeed, the controversy over procedure underlying Atlantic Marine could have been largely avoided if the Supreme Court and other federal court procedure policymakers had done their jobs correctly and provided clarity at some point closer to 1972.

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