March 31, 2017 Articles

Beware: Permissive vs. Mandatory Forum Selection Clauses

A discussion of jurisprudence concerning the enforceability of the clauses in admiralty and maritime contracts as permissive versus mandatory.

By Alexander Selarnick

In many instances, a significant question in interpreting a forum selection clause—a contractual provision that designates a particular venue for litigation related to the contract—is whether the clause at issue is permissive or mandatory. Permissive forum selection clauses authorize jurisdiction and venue in a designated forum, but do not prohibit litigation elsewhere. In contrast, mandatory forum selection clauses contain clear language indicating that jurisdiction and venue are appropriate exclusively in the designated forum. This article discusses some jurisprudence concerning the enforceability of forum selection clauses in admiralty and maritime contracts as permissive versus mandatory, including the drastic effect that this can have depending on where litigation is commenced in the first instance.

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