It has been said that “[n]othing is more wasteful than litigation about where to litigate.”1 To avoid such satellite litigation, contracting parties often include in their agreements a forum-selection clause, also known as a choice-of-forum clause. In such a clause, the parties agree in advance as to what court will be empowered to resolve any disputes that may arise between them.
The modern trend in New York, as elsewhere, is to honor such clauses, by entertaining litigation brought in the parties’ agreed-upon forum and dismissing actions brought outside that forum—particularly where the contract provides for the selected forum to be the exclusive one.2 However, one line of case law has held that a New York court could still dismiss a case filed in New York based on such a clause, where the parties and their dealings had no meaningful connection with New York beyond the clause itself. As a result, some cases have been heard in a court other than the New York court that the parties had agreed upon. And even where the New York court decided to honor the forum-selection clause, it might do so only after motion practice in which the defendant sought a forum non conveniens dismissal.
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