Forum Selection Clause — Federal Law Determines Enforceability of Clause, While Law Recited in Choice of Law Clause Determines Interpretation of Clause — Circuit Split

Martinez v. Bloomberg LP, 740 F.3d 211 (2d Cir. 2014):

Plaintiff-Appellant Brian Anthony Martinez ("Martinez") appeals from a judgment of the United States District Court for the Southern District of New York (Furman, J.), dismissing his complaint for improper venue under Rule 12(b)(3) of the Federal Rules of Civil Procedure. Martinez brought this action against his former employer, Bloomberg LP ("Bloomberg"), a privately held financial software, mass media, and data analysis company, as well as two of its employees, Andrew Lack and Catriona Henderson, alleging that his termination constituted discrimination in violation of the Americans with Disabilities Act ("ADA"), as well as state and local laws. Bloomberg and Lack moved to dismiss on the basis of a clause contained in Martinez's employment contract, which indicated that English law governed the agreement and that "any dispute arising hereunder shall be subject to the exclusive jurisdiction of the English courts." We hold that: (1) where a contract contains both a valid choice-of-law clause and a forum selection clause, the substantive law identified in the choice-of-law clause governs the interpretation of the forum selection clause, while federal law governs the enforceability of the forum selection clause; (2) under English law, Martinez's discrimination claims "arise []under" the employment agreement, within the meaning of the forum selection clause; and (3) the forum selection clause is enforceable under federal law. Accordingly, we affirm the judgment of the district court.

***

DISCUSSION

Martinez raises two issues on appeal. First, he contends that the district court erred in construing the forum selection clause to encompass claims of discrimination based on perceived disability that could be brought under the ADA. Second, he argues that, even if the district court was correct in its interpretation of the forum selection clause's scope, the court should find it unenforceable, both because it would have the effect of forcing him to forfeit his ADA claim, and because several aspects of English law prompted him to abandon his contemporaneous action in the U.K. and his English claims are now time-barred.

We have previously observed that "neither the Supreme Court, nor this Court, has specifically designated a single clause of Rule 12(b) . . . as the proper procedural mechanism" for enforcing a forum selection clause through a motion to dismiss. TradeComet.com LLC v. Google, Inc., 647 F.3d 472, 475 (2d Cir. 2011) (quotation marks and internal citations omitted). The Supreme Court recently resolved this uncertainty in Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas, 134 S. Ct. 568, 187 L. Ed. 2d 487 (2013). The Court held that generally "the appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens," rather than Rule 12(b).3 Id. at 580.

 

3   The Court reserved decision as to whether a party bringing an action for breach of contract might obtain dismissal under Rule 12(b)(6). Atl. Marine, 134 S. Ct. at 580.

This clarification of the proper procedural vehicle for enforcing a forum selection clause, however, does not appear to alter the materials on which a district court may rely in granting a motion to dismiss based on a forum selection clause. In deciding a motion to dismiss for forum non conveniens, a district court normally relies solely on the pleadings and affidavits, see Transunion Corp. v. PepsiCo, Inc., 811 F.2d 127, 130 (2d Cir. 1987), though it may order limited discovery, see Fitzgerald v. Texaco, Inc., 521 F.2d 448, 451 n.3 (2d Cir. 1975). Similarly, in evaluating a motion to dismiss based on a forum selection clause, a district court typically relies on pleadings and affidavits, see Phillips v. Audio Active, Ltd., 494 F.3d 378, 384 (2d Cir. 2007), but must conduct an evidentiary hearing to resolve disputed factual questions in favor of the defendant, see New Moon Shipping Co., Ltd. v. MAN B & W Diesel AG, 121 F.3d 24, 29 (2d Cir. 1997). The parties here proceeded on the basis of the pleadings and the affidavits they submitted in connection with the motion to dismiss.

Atlantic Marine, however, did not address the standard of review to which we subject a district court's decision to dismiss a case based on a forum selection clause. While we review a district court's decision to dismiss a case on the basis of general forum non conveniens doctrine for abuse of discretion, see Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir. 2001) (en banc), we review a dismissal based specifically on a forum selection clause de novo, Phillips, 494 F.3d at 384, except where the decision is based on factual findings, which we review for clear error, Asoma Corp. v. SK Shipping Co., Ltd., 467 F.3d 817, 822 (2d Cir. 2006). Although Atlantic Marine did not resolve this question, we need not decide it here. Since we conclude that the district court's decision to dismiss the case was proper under de novo review, we would reach the same conclusion under any more deferential standard of review.

I.

Before we reach Martinez's challenges to the district court's interpretation of the forum selection clause and its finding that the clause is enforceable as applied to his discrimination claims, we address a conceptually prior issue: Where a contract contains both a choice-of-law and a choice-of-forum clause, does federal law or the body of law specified in the choice-of-law clause govern the effect of the choice-of-forum clause in an action brought in a federal district court?

In answering this question, we distinguish between the interpretation of a forum selection clause and the enforceability of the clause. To determine whether the district court properly dismissed a claim based on a forum selection clause, we employ a four-part analysis. We ask: (1) "whether the clause was reasonably communicated to the party resisting enforcement"; (2) whether the clause is "mandatory or permissive, i.e., . . . whether the parties are required to bring any dispute to the designated forum or simply permitted to do so"; and (3) "whether the claims and parties involved in the suit are subject to the forum selection clause." Phillips, 494 F.3d at 383 (emphasis in original). "If the forum clause was communicated to the resisting party, has mandatory force and covers the claims and parties involved in the dispute, it is presumptively enforceable." Id. A party can overcome this presumption only by (4) "making a sufficiently strong showing that enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching." Id. at 383-84 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972)).

The overriding framework governing the effect of forum selection clauses in federal courts, therefore, is drawn from federal law. Furthermore, "federal law should be used to determine whether an otherwise mandatory and applicable forum clause is enforceable under Bremen, i.e., step four in our analysis." Phillips, 494 F.3d at 384; see also Aguas Lenders Recovery Grp. v. Suez, S.A., 585 F.3d 696, 700 (2d Cir. 2009); Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir. 1990) (per curiam); AVC Nederland B.V. v. Atrium Inv. P'ship, 740 F.2d 148, 156 (2d Cir. 1984). In answering the interpretive questions posed by parts two and three of the four-part framework, however, we normally apply the body of law selected in an otherwise valid choice-of-law clause. See AVC Nederland, 740 F.2d at 155; Phillips, 494 F.3d at 386 (noting in dicta that "we cannot understand why the interpretation of a forum selection clause should be singled out for application of any law other than that chosen to govern the interpretation of the contract as a whole").  Hence, if we are called upon to determine whether a particular forum selection clause is mandatory or permissive, see AVC Nederland, 740 F.2d at 155-56, or whether its scope encompasses the claims or parties involved in a certain suit, we apply the law contractually selected by the parties.

This approach reconciles respect for contracting parties' legitimate expectations with other important federal policies.  If the enforceability of a forum selection clause were governed by the law specified in the choice-of-law clause, then contracting parties would have an absolute right to "oust the jurisdiction" of the federal courts. See Evolution Online Sys., Inc. v. Koninklijke PTT Nederland N.V., 145 F.3d 505, 509-10 (2d Cir. 1998) (even if forum selection clause is mandatory, court must determine whether "enforcement would be 'unjust' or [whether] the clause [wa]s 'invalid for such reasons as fraud or overreaching'" under Bremen before granting motion to dismiss). Federal law must govern the ultimate enforceability of a forum selection clause to ensure that a federal court may decline to enforce a clause if "trial in the contractual forum [would] be so gravely difficult and inconvenient that [the resisting party] will for all practical purposes be deprived of his day in court," or "if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision." Bremen, 407 U.S. at 18, 15. For instance, we have declined to "adopt a per se rule that gives [forum selection clauses] dispositive effect where the civil rights laws are concerned," observing that "a strong federal public policy favoring enforcement of the civil rights laws" requires that courts invalidate a forum selection clause where enforcement "would frustrate that purpose." Red Bull Assocs. v. Best W. Int'l, Inc., 862 F.2d 963, 967 (2d Cir. 1988) (finding denial of motion to transfer under 28 U.S.C. § 1404(a) proper, despite forum selection clause, since district court acted within its discretion in holding that transfer would undermine civil rights statutes); see also Roby v. Corp. of Lloyd's, 996 F.2d 1353, 1365 (2d Cir. 1993) (federal courts would decline to enforce forum selection clause that undermined public policy of protecting American securities investors).

The presumptive enforceability of forum selection clauses reflects a strong federal public policy of its own, which would likewise be undermined if another body of law were allowed to govern the enforceability of a forum selection clause. In the absence of a forum selection clause, a court applying the doctrine of forum non conveniens weighs and balances the public and private interests identified in Gulf Oil Corp. v. Gilbert, keeping in mind that "the plaintiff's choice of forum should rarely be disturbed." 330 U.S. 501, 508, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). In Bremen, however, the Supreme Court held that forum selection clauses require a substantial modification of the forum non conveniens doctrine, whereby the doctrine's usual tilt in favor of the plaintiff's choice of forum gives way to a presumption in favor of the contractually selected forum. 407 U.S. at 6, 15. Since forum selection clauses constitute an "indispensable element in international trade, commerce, and contracting" by reducing uncertainties about where suit may be brought, the Bremen Court concluded that they should be invalidated only when the resisting party satisfies the "heavy burden" of showing that "it would be unfair, unjust, or unreasonable to hold that party to his bargain." Id. at 13-14, 19, 18.

Although Bremen was a suit in admiralty, the Supreme Court has long recognized that the "the orderliness and predictability" promoted by forum selection clauses has value beyond the admiralty context. Scherk v. Alberto-Culver Co., 417 U.S. 506, 516, 94 S. Ct. 2449, 41 L. Ed. 2d 270 (1974) (enforcing international arbitration agreement in context of securities litigation); see also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985) (Bremen establishes "strong presumption in favor of enforcement of freely negotiated contractual choice-of-forum provisions"). Forum selection clauses "further vital interests of the justice system, including judicial economy and efficiency, ensure that parties will not be required to defend lawsuits in far-flung fora, and promote uniformity of result." Magi XXI, Inc. v. Stato della Citta del Vaticano, 714 F.3d 714, 722 (2d Cir. 2013) (internal quotation marks, alterations, and citations omitted); see also Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33, 108 S. Ct. 2239, 101 L. Ed. 2d 22 (1988) (Kennedy, J., concurring) ("[E]nforcement of valid forum-selection clauses, bargained for by the parties, protects their legitimate expectations and furthers vital interests of the justice system.").

The Supreme Court again emphasized the importance of forum selection clauses in Atlantic Marine, a case involving 28 U.S.C. § 1404(a), which governs motions to transfer a case from one federal district court to another. The Bremen Court found that the lower court erred in assessing the defendant's motion to dismiss in favor of a foreign forum under the "normal forum non conveniens doctrine applicable in the absence of [a forum selection] clause." 407 U.S. at 6. Similarly, the Atlantic Marine Court found that the lower court erred in "failing to make the adjustments required in a §1404(a) analysis when the transfer motion is premised on a forum-selection clause." 134 S. Ct. at 581. And just as the Bremen Court concluded that a resisting party bears a "heavy burden" in overcoming a presumptively enforceable forum selection clause, 407 U.S. at 19, the Atlantic Marine Court found that, "[i]n all but the most unusual cases . . . , 'the interest of justice' is served by holding parties to their bargain" by enforcing an intra-federal forum selection clause, 134 S. Ct. at 583. Atlantic Marine did not address the extent to which the "interest of justice" test for invalidating a forum selection clause pointing to another federal district court resembles the test developed under Bremen for invalidating a forum selection clause pointing to a nonfederal forum. Atlantic Marine, however, plainly reaffirms Bremen's identification of a strong federal public policy supporting the enforcement of forum selection clauses.

If, however, the body of law indicated in a choice-of-law clause were to govern the enforceability of a forum selection clause, then "choice of law provisions selecting jurisdictions that disfavor forum clauses would put district courts to the awkward choice of either ignoring the parties' choice of law or invalidating their choice of forum." Phillips, 494 F.3d at 385. In Bense v. Interstate Battery System of America, Inc., we declined to apply Texas law to determine the enforceability of a forum selection clause, even though the contract's choice-of-law clause selected Texas law. 683 F.2d 718, 722 (2d Cir. 1982). Insofar as the resisting party asserted that Texas law "disfavors forum-selection clauses," we found that applying Texas law would "render the forum selection clause meaningless[] and . . . frustrate the purpose of the parties as it is clearly set forth in the agreement." Id. Additionally, in the context of international forum selection clauses, by distinguishing between questions of interpretation and enforcement, we limit the application of foreign law at the forum non conveniens stage to questions about the meaning of the terms used in the contract. This prevents courts from having to engage in a potentially complex and protracted inquiry into the enforceability of a forum selection clause under foreign law, which would defeat the purpose of the forum selection clause. Cf. Piper Aircraft v. Reno, 454 U.S. 235, 258, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981) ("[r]equiring extensive investigation" to establish inaccessibility of witnesses "would defeat the purpose of" motion to dismiss for forum non conveniens). To ensure that federal courts account for both the important interests served by forum selection clauses and the strong public policies that might require federal courts to override such clauses, therefore, federal law must govern their enforceability.

It would undermine the predictability fostered by forum selection clauses, however, if federal law--rather than the law specified in a choice-of-law clause--were to govern the interpretation as well as the enforceability of a forum selection clause. If "the interpretation of a forum selection clause [were] singled out for application of any law other than that chosen to govern the interpretation of the contract as a whole," Phillips, 494 F.3d at 386, then the same word or phrase could have a different meaning in the forum selection clause than it has elsewhere in the same contract. Applying federal law to construe a forum selection clause could frustrate the contracting parties' expectations by giving a forum selection clause a broader or narrower scope in a federal court than it was intended to have. It could transform a clause that would be construed as permissive under the parties' chosen law into a mandatory clause, or vice versa, simply because the litigation was brought in a federal court in the United States. See Albemarle Corp. v. Astrazeneca UK Ltd., 628 F.3d 643, 646 (4th Cir. 2010). In the absence of a strong countervailing public policy justifying the invalidation of a forum selection clause, courts should do no "more than give effect to the legitimate expectations of the parties, manifested in their freely negotiated agreement." Bremen, 407 U.S. at 12. To ensure that the meaning given to a forum selection clause corresponds with the parties' legitimate expectations, courts must apply the law contractually chosen by the parties to interpret the clause.

Distinguishing between the enforceability and the interpretation of forum selection clauses, moreover, accords with the traditional divide between procedural and substantive rules developed under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). "Questions of venue and the enforcement of forum selection clauses are essentially procedural, rather than substantive, in nature," and therefore should be governed by federal law. Jones, 901 F.2d at 19 (emphasis added); see Am. Dredging Co. v. Miller, 510 U.S. 443, 453, 114 S. Ct. 981, 127 L. Ed. 2d 285 (1994) ("[V]enue is a matter that goes to process rather than substantive rights . . . ."). Although the Supreme Court recently distinguished the inquiry into whether venue is proper under 28 U.S.C. § 1391(b) from the enforceability of a forum selection clause, it made clear that the enforceability of a forum selection clause in the federal courts is resolved under federal law: 28 U.S.C. § 1404(a), which represents "merely a codification of the doctrine of forum non conveniens," governs "the subset of cases in which the transferee forum is within the federal system"; meanwhile, the "residual doctrine of forum non conveniens," which "has continuing application in federal courts," governs where the forum selection clause "call[s] for a nonfederal forum." Atl. Marine, 134 S. Ct. at 580 (internal quotation marks omitted).

The continued application of this residual doctrine is consistent with the federal courts' longstanding "inherent power" to generate rules promoting uniformity in the "administration of legal proceedings." See Hanna v. Plumer, 380 U.S. 460, 472-73, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965). The demand for a uniform federal standard governing the enforceability of a forum selection clause is especially strong in an international context, as here. A decision invalidating a forum selection clause mandating proceedings abroad implicates foreign relations, an area of "paramount federal interest." Grieve v. Tamerin, 269 F.3d 149, 153 (2d Cir. 2001); see also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427, 84 S. Ct. 923, 11 L. Ed. 2d 804 (1964). The Bremen test supports this interest by ensuring that federal courts give effect to forum selection clauses designating foreign fora except in a few, narrowly defined circumstances.

There is no similar federal interest, however, in overriding parties' contractually chosen body of law in favor of uniform federal rules governing the interpretation of forum selection clauses. Indeed, such an exercise in federal-common-law-making undermines the constitutional "allocation of judicial power between the state and federal systems" established in Erie. Hanna v. Plumer, 380 U.S. 460, 474, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965) (Harlan, J., concurring). Contract law--including the rules governing contract interpretation--is quintessentially substantive for Erie purposes, and therefore primarily the realm of the states. See Alland v. Consumers Credit Corp., 476 F.2d 951, 954-55 (2d Cir. 1973); see also Avery v. Hughes, 661 F.3d 690, 693-94 (1st Cir. 2011). In construing a forum selection clause, a court may confront a wide range of contract law issues, from the treatment of ambiguous phrases, see Yavuz v. 61 MM, Ltd., 465 F.3d 418, 431 (10th Cir. 2006), to the admissibility of parol evidence, see Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 514 (9th Cir. 1988), to successorship and the rights of third-party beneficiaries, see Magi XXI, 714 F.3d at 723; Aguas Lenders, 585 F.3d at 703. Erie warns against an approach that would force federal courts to generate a sprawling "federal general common law" of contracts to govern such questions whenever they arise in the context of forum selection clauses. 304 U.S. at 78.

The instant case concededly differs from one that poses a typical Erie question, both because it arises under federal question jurisdiction, and because the forum selection clause here provides for proceedings abroad under foreign law, rather than in a particular state's courts under state law. Yet Erie does not merely articulate a choice-of-law rule for federal diversity cases. See Sosa v. Alvarez-Machain, 542 U.S. 692, 724-32, 124 S. Ct. 2739, 159 L. Ed. 2d 718 (2004). Rather, the decision reflects a constitutional architecture in which the federal judiciary's common-law-making power   is confined to "restricted" areas where "a federal rule of decision is necessary to protect uniquely federal interests" or where "Congress has given the courts the power to develop substantive law." Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640, 101 S. Ct. 2061, 68 L. Ed. 2d 500 (1981). We find no authority for federal courts to generate general rules of contract interpretation where the contracting parties have expressly selected another body of law to govern their agreement and rely on this law in litigation.

Our review of the decisions of our sister circuits supports our conclusions both with respect to the strong federal interest in a uniform standard governing enforcement of forum selection clauses in an international context, and with respect to the importance of distinguishing the enforcement of a forum selection clause from its interpretation. The circuits are split around the question of whether a federal court sitting in diversity should apply federal or state law to determine the enforceability of a forum selection clause designating a domestic forum, although Supreme Court's decision in Atlantic Marine casts doubt on the latter position. Compare Jones, 901 F.2d at 19 (applying federal law), and Stewart Org. Inc. v. Ricoh Corp., 810 F.2d 1066, 1068 (same), aff'd, 487 U.S. 22, 108 S. Ct. 2239, 101 L. Ed. 2d 22 (1988) (agreeing that federal law governs enforceability of forum selection clause, but holding that the relevant federal law is 28 U.S.C. § 1404(a) rather than Bremen), with Gen. Eng'g Corp. v. Martin Marietta Alumina, 783 F.2d 352, 357-58 (3d Cir. 1986) (applying state law); see also Lambert v. Kysar, 983 F.2d 1110, 1116 n.10 (1st Cir. 1993) (noting circuit split and declining to take a side); Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 16-17 (1st Cir. 2009) (same). Every circuit court decision that we have located involving a forum selection clause designating a foreign forum, however, has applied federal law, as articulated by Bremen, to decide the clause's enforceability. See Commerce Consultants Int'l, Inc. v. Vetrerie Riunite, S.p.A., 867 F.2d 697, 700, 276 U.S. App. D.C. 81 (D.C. Cir. 1989); Albemarle Corp., 628 F.3d at 651-52;Haynsworth v. The Corp., 121 F.3d 956, 962 (5th Cir. 1997); Wong v. PartyGaming Ltd., 589 F.3d 821, 828 (6th Cir. 2009); Bonny v. Soc'y of Lloyd's, 3 F.3d 156, 159 (7th Cir. 1993); Manetti-Farrow, Inc., 858 F.2d at 513; Riley v. Kingsley Underwriting Agencies, 969 F.2d 953, 957 (10th Cir. 1992).

We do not identify as clear a prevailing approach on the question of what law governs the interpretation of forum selection clauses. In part, this derives from courts' tendency to blur the distinction between enforceability and interpretation. In Manetti-Farrow, Inc. v. Gucci America, Inc., for instance, the Ninth Circuit noted (as we also do above) that "the federal procedural issues raised by forum selection clauses significantly outweigh the state interests," concluding that "the federal rule announced in the Bremen controls enforcement of forum clauses in diversity cases." Manetti-Farrow, 858 F.2d at 513 (emphasis added). But it then concluded that, "because enforcement of a forum clause necessarily entails interpretation of the clause before it can be enforced, federal law also applies to interpretation of forum selection clauses." Id. Yet we see nothing to prevent a court from first interpreting the forum selection clause under the law selected by the contracting parties to determine whether it is mandatory and encompasses the claims and parties at issue in the case, before turning to federal law to determine whether the clause should be enforced.

Indeed, three circuits have settled on this approach, though without articulating it as expressly we do now. For instance, while the Tenth Circuit employs federal common law to determine the enforceability of a foreign forum selection clause, Riley, 969 F.2d at 957, it has applied the law chosen by the contracting parties to resolve the interpretive question of whether a particular forum selection clause is mandatory or permissive, see Yavuz, 465 F.3d at 431 (directing the lower court to determine whether the phrase "Place of courts is Fribourg" is mandatory or permissive under Swiss law, the law selected in the choice-of-law clause). Similarly, the Seventh Circuit in dicta has suggested that both the interpretation and enforceability of a forum selection clause should be determined based on the body of law selected in a choice-of-law clause. See Abbott Labs. v. Takeda Pharm. Co. Ltd., 476 F.3d 421, 423 (7th Cir. 2007). Yet these dicta occurred in a case where there was little debate that the forum selection clause was enforceable under either federal law or the contractually chosen law, and the central issue was an interpretive one (the scope of the phrase "relates to" in the forum selection clause), which the court appeared to employ the contractually selected body of law to resolve. Id. at 423-25. Meanwhile, in line with every other federal circuit court that has addressed the issue, the Seventh Circuit has determined the enforceability of a forum selection clause designating a foreign forum as a matter of federal law under Bremen. See Bonny, 3 F.3d at 159 ("enforceability of forum selection clauses in international agreements is governed by . . . Bremen"). Finally, despite language indicating that "a federal court interpreting a forum selection clause must apply federal law in doing so," the Fourth Circuit in Albermarle Corp. v. AstraZeneca UK Ltd. actually applied the body of law identified in a choice-of-law clause--English law--to an interpretive question raised by a forum selection clause. 628 F.3d at 650, 651. It concluded that the forum selection clause at issue should be treated as mandatory because it would have that effect under English law, even though it would be construed as permissive under federal common law. Id. at 651. Having resolved this interpretive question, the court then went on to find "we will give effect to the parties' selection of the English forum only if it would not be unreasonable to do so," and assessed the clause's enforceability under the federal common law articulated in Bremen. Id.

This Court has likewise at times cited federal law in interpreting a forum selection clause, even where the contract at issue also contained a choice-of-law clause. See Magi XXI, 714 F.3d at 721; John Boutari & Son, Wines & Spirits, S.A. v. Attiki Imps. & Distribs. Inc., 22 F.3d 51, 53 (2d Cir. 1994); Roby, 996 F.2d at 1361. There is no indication in any of these decisions, however, that the parties urged the application of any specific element of the contractually chosen body of law to govern the interpretation of the forum selection clause. These cases, then, simply stand for the proposition that litigating "parties by their acquiescence . . . may induce the trial court to assume that foreign law is similar to that of the forum," with the result that a court does not err when it articulates its decision by reference to the law of the forum. Walter E. Heller & Co. v. Video Innovations, Inc., 730 F.2d 50, 53 (2d Cir. 1984). Just as parties are free, via a choice-of-law clause, to select the law to govern the interpretation of a forum selection clause, nothing  [*30] prevents the parties in litigation from choosing not to "rely on any distinctive features of [the selected law] and [instead to] apply general contract law principles and federal precedent to discern the meaning and scope of the forum clause." Phillips, 494 F.3d at 386.

In this case, both parties invoked English law in their arguments about the scope of the forum selection clause, and the district court applied English law in finding that the clause encompassed Martinez's claims. Martinez, 883 F. Supp. 2d at 517. We find the district court's decision to apply English law correct based on the framework that we articulated in Philips and reaffirm here, whereby questions of enforceability are resolved under federal law, while interpretive questions--questions about the meaning and scope of a forum selection clause--are resolved under the substantive law designated in an otherwise valid contractual choice-of-law clause.

Share this article:

Share on facebook
Facebook
Share on twitter
Twitter
Share on linkedin
LinkedIn
Share on email
Email

Recent Posts

Archives