Cases on Jurisdiction and Forum Selection Clauses - Stewart McKelvey

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CASES ON JURISDICTION AND FORUM SELECTION CLAUSES – JAN. 2012CONTRACTUAL CLAUSE JURISDICTIONS SUMMARY OF DECISIONMaritime Telegraph & Telephone Co. v. Pre Print Inc., 1996 CarswellNS 12 (C.A.)“19. Governing Law:This License Agreement shall be interpreted inaccordance with the local domestic law of theprovince of Alberta, Canada. If any part of thisLicense Agreement is invalidated by Court orlegislated action of competent jurisdiction, theremainder of this License Agreement shall remainin binding effect.19.1 Attornment:Pre Print and the licensee agree to attorn to thejurisdiction of the Courts of the Province of Albertawith respect to any claim or dispute arising out ofthis License Agreement.” (at para. 8)Plaintiffs – Nova ScotiaDefendant – AlbertaSimEx Inc. v. IMAX Corp., 2005 CarswellOnt 7297 (C.A.)“6. Choice of Law (Section 8.01):The agreement was to be governed by the laws ofOntario and any legal action was to [be] brought inthe courts of Ontario.” (at para. 7)Applicant – OntarioRespondent – CaliforniaHeld: Attornment clause rejected.The question was whether the contract contained anattornment clause (non-exclusive jurisdiction) or aforum selection clause (exclusive jurisdiction). It wasfound to be an attornment clause.The Plaintiff had to show “strong cause” to preventthe granting of the stay. The Plaintiff was able toadduce sufficient evidence to show that overall, therewas a more substantial connection with Nova Scotiathan with Alberta. A stay of proceedings was notgranted.The balance in the case was between the right of thePlaintiff to choose its forum and the ability of theDefendant to enforce the agreement entered into bythe parties.Held: Forum selection clause upheld.The defendant was bound by the forum selectionclause in the governing agreement because thedefendant failed to show “strong cause” or “goodreason” why it should not be bound by the provision.The contractual language agreed to by the partieswas not ambiguous.2426503.v2Page 5
CASES ON JURISDICTION AND FORUM SELECTION CLAUSES – JAN. 2012CONTRACTUAL CLAUSE JURISDICTIONS SUMMARY OF DECISIONZ.I. Pompey Industrie v. ECU-Line N.V., 2003 CarswellNat 1031 (S.C.C.)“The contract evidenced by or contained in this billof Lading [sic] is governed by the law of Belgium,and any claim or dispute arising hereunder or inconnection herewith shall be determined by thecourts in Antwerp and no other Courts.”(at para. 4)Appellant – Antwerp,BelgiumRespondents – France(However, Respondentstook position that the Bill ofLading had come to an endin Montreal so thatproceedings could takeplace in Canada.)Held: Forum selection clause upheld.The Appellants brought a motion seeking a stay ofproceedings in Canada because the Bill of Ladingrequired that disputes be determined exclusively bythe Courts of Antwerp.Forum selection clauses are often found in Bills ofLading and Courts encourage these provisions.There is no reason to suggest that the “strong cause”test is no longer relevant and effective. The “strongcause” test puts the burden on the Plaintiff toestablish why it should not be bound by a forumselection clause, and Courts must give full weight tothe desirability of holding contracting parties to theiragreements. Leeway is built into the “strong cause”test so as to prevent Defendants from improperly orunfairly relying on forum selection clauses.The “strong cause” test should be upheld for publicpolicy reasons. Here the parties were bothexperienced corporations with the ability to negotiatea forum selection clause. Overall the “strong cause”test is, absent applicable legislation such as theMarine Liability Act, the proper test for a stay ofproceedings to enforce a forum selection clause in aBill of Lading.2426503.v2Page 6
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Cases on Jurisdiction and Forum Selection Clauses - Stewart McKelvey

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