Arbitration & Mediation

5th DCA Finds "the" and Other Exclusive Language to Create a Binding Forum Selection Clause

By Christopher B. Hopkins, Esq.

It seemed that forum selection clauses were not in vogue in 2008, after getting a fair amount of attention in 2007.

The Fifth District revived our interest in mandatory or permissive forum selection clauses, by examining an AT&T contract in Travel Express Investments, Inc. v. AT&T Corp. (Sawaya, Orfinger, and Lawson). Previously, we believed the needless sounding language like "to the exclusion of all other venues" was necessary to create a mandatory forum -- this case suggests otherwise, indicating that vaguely exclusive language may be enough.

The contract at issue appears to be an AT & T Master Agreement, which, judging from our Google search, may apply to land and cell phone lines. The standard language is in paragraph 13.6 and states, "The parties consent to the exclusive jurisdiction of the courts located in New York City, USA."

The court found that (1) "the" was an exclusive term, meaning one and only one and (2) the phrase "the exclusive jurisdiction" meant just that -- there was one place alone were suit could be filed.

Notably, the court found that the word "consent" did not make it permissive. Note, back in the forum selection clause heyday of 2007, the same court said in Sonus-USA, Inc. v. Thomas W. Lyons d/b/a Gulf Atlantic, etc. that "shall" was the magic word for exclusive/mandatory clauses...

Full post as published by Florida Arbitration Law on July 12, 2009 (boomark / email).