
Contents
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I. Introduction I. Introduction
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II. Forum Selection Clauses II. Forum Selection Clauses
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A. Introduction A. Introduction
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B. Which Law Governs Forum Selection Clauses? B. Which Law Governs Forum Selection Clauses?
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1. Scenario 1: Action Filed in the Chosen Court 1. Scenario 1: Action Filed in the Chosen Court
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2. Actions Filed in a Court Not Chosen (the “Seized” Forum) 2. Actions Filed in a Court Not Chosen (the “Seized” Forum)
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a. Scenario 2: Contracts without Choice-of-Law Clauses a. Scenario 2: Contracts without Choice-of-Law Clauses
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b. Scenario 3: Contracts with Choice-of-Law Clauses b. Scenario 3: Contracts with Choice-of-Law Clauses
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3. Summary and Critique 3. Summary and Critique
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C. Separability of Forum Selection Clause C. Separability of Forum Selection Clause
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III. Arbitration Clauses III. Arbitration Clauses
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A. Domestic Interstate Arbitration A. Domestic Interstate Arbitration
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1. Introduction 1. Introduction
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2. The Supreme Court’s Strong Pro-Arbitration Stance 2. The Supreme Court’s Strong Pro-Arbitration Stance
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3. The Lower Courts’ Efforts to Level the Playing Field 3. The Lower Courts’ Efforts to Level the Playing Field
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a. Employment Contracts a. Employment Contracts
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b. Consumer Contracts b. Consumer Contracts
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4. Separability of Arbitration Clause 4. Separability of Arbitration Clause
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B. Foreign Arbitration B. Foreign Arbitration
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1. The Supreme Court’s Jurisprudence 1. The Supreme Court’s Jurisprudence
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2. Law Governing the Arbitration Agreement 2. Law Governing the Arbitration Agreement
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a. Contractual Capacity a. Contractual Capacity
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b. Other Issues of Formation of the Arbitration Agreement b. Other Issues of Formation of the Arbitration Agreement
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c. Issues of Scope, Validity, and Enforceability (Other than Arbitrability) c. Issues of Scope, Validity, and Enforceability (Other than Arbitrability)
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d. Arbitrability d. Arbitrability
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e. Public Policy e. Public Policy
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3. Law Applicable in Arbitration 3. Law Applicable in Arbitration
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Eleven Forum Selection Clauses and Arbitration Clauses
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Published:May 2016
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Abstract
Part I of this chapter discusses forum-selection (or choice-of-forum) clauses. In particular, it examines the question of which state’s law governs the enforceability and interpretation of forum selection clauses when the action is filed in the chosen court or in another court, and depending on whether or not the contract also contains a choice-of-law clause. After describing the divisions among courts on this question, it takes a position on the proper answer and explains why. It concludes with a discussion of the doctrine of separability or severability of the forum selection clause. Part II discusses arbitration clauses in both interstate and international contracts, focusing primarily on which law governs the enforceability and interpretation of arbitration clauses. It describes the Supreme Court’s strong pro-arbitration stance and the state courts’ efforts to protect weak parties, such as consumers or employees.
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