• December 15, 2009

A while back, this blog reported on a Minnesota case (C.H. Robinson v. FLS Transportation) involving a Canadian firm bound by a forum selection clause in a contract to which it was not a party.

Today, U.S. District Court Judge John Tunheim ruled against British Confectionary, a British company with a plant in Labrador Newfoundland, finding that the clause that they had St. Paul’s Multifeeder Technology sign, was a “permissive” forum selection clause rather than a “mandatory” one.  That clause provided:

Each party hereby submits itself for the sole purpose of this Agreement and any controversy arising hereunder to the jurisdiction of the courts located in the Province of Newfoundland and Labrador and any courts of appeal therefrom, and waives any objection on the grounds of lack of jurisdiction (forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts.

British Confectionary placed emphasis on the word, “submits” suggesting that should be read to mean acquiescence to one exclusive forum for dispute resolution but the Court did not buy it.

The key word, of course, is “exclusive” (or “exclusively”).  If one cannot get the other side’s agreement on the insertion of that term, a claim that the forum selection clause is mandatory faces an uphill battle.

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