Cases on Jurisdiction and Forum Selection Clauses - Stewart McKelvey

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