Legal Memorandum: Validity of Forum Selection Clauses

Issue: Are forum selection clauses valid?

Forum-selection clauses are prima facie valid and should be enforced unless the party seeking to avoid the clause shows that enforcement would be unreasonable under the circumstances. M/S/Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972).  A forum-selection clause is only unreasonable when its enforcement would “seriously impair” the moving party’s ability to pursue its claims or defenses.  Elia Corp., 391 A.2d at 216.  Mere inconvenience or additional expense is not the test of unreasonableness.  If the agreed-upon forum can do substantial justice, a contracting party is bound by the bargain.  Id.  “In light of present day commercial realities, a forum clause should control absent a strong showing that it should be set aside.”  Simm Assocs., Inc. v. PNC Nat’l Bank, No. 98C-02-219-WTQ (Del. Super. Ct. Oct. 8, 1998).

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