Forgotten Equity: The Enforcement of Forum Clauses

Graydon S. Staring

Abstract

When courts differ widely and sharply on which of three or four procedural courses shouold be taken to enforce a contractual right of unquestioned validity, and every such course openly strains orthodox procedural doctrine, we may suslpect they are all wrong. We can confirm that they are wrong when we recognize the right in question is not a procedural incident at all but the right to a substantive performance, bargained for by the parties, that has about it an illusory appearance of procedure and, because of its substance, does not fit comfortably within merely procedural doctrine. Such is the right to be sued, if at all, only in the jurisdictio named in the forum clause of a contract.

Equity courses have been out of fashion for decades. Those who remember one, however, may recognize that the enforcement of a contractual forum clause is a clear instance of specific performance in equity and the known defenses to its enforcement are precisely those that equity makes available. While enforcement has grown more familiar, however, it has come adrift from its doctrinal basis. The result is confusion, as courts and counsel search through procedural rules and practices for pigeonholes in which to fit such enforcement.