Duquesne Law Review


When the United States Supreme Court validated the use of forum selection clauses in contracts, it carved out an exception based on the public policy of the forum court considering enforcement of the clause. The exception permits a forum court to invalidate a forum selection clause that directs the suit to a jurisdiction which would apply a law that contravenes an important public policy of the forum. Generally, in application, public policy is anything but clear and predictable, and has been compared to an "unruly horse." This article attempts to bring clarity and predictability to the application of the public policy exception to the validation of forum selection clauses. It analyzes the different modes of analysis that courts use to determine the validity of forum clauses and the types of clauses that are susceptible to invalidation, with special attention placed on international agreements.

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