Re: Choice of venue, was: GUADEC report
Lex Spoon wrote:
> Why do you think *real* lawyers seem to be okay with such clauses?
Sometimes parties in a uniformly constructed contract agree to a particular
venue, perhaps because both are qualified to practice law there. In a free
software license or commercial EULA however, the licensee is not at liberty to
negotiate, so the venue clause is wholly to the advantage of the licensor. In a
review of section 2B-108 in UCITA, the American Law Institute describes the
exercise of such unilateral forum clauses as a "perversion of the notions of
freedom of contract":
"But the real evil of the provision lies in the potential the drafter
has for bringing legal action in its chosen forum against the
non-drafter. In any case in which the drafter brings its action, the
non-drafter will have to go to the foreign jurisdiction (or hire a
foreign lawyer there) to challenge as "unreasonable and unjust" the
chosen forum's exercise of its own jurisdiction. The penalty for not
traveling to the forum is to suffer a default judgment which will then
require a most difficult and expensive collateral attack when the
judgment returns to the non-drafter's jurisdiction with the Sheriff for
execution against the non-drafter's assets." [...]
"It is a perversion of the notions of "freedom of contract" to bind a
non-drafter to long-term commitments to the Drafter under the assent
provisions of Article 2B, sue her in a foreign jurisdiction for
violating the terms in the form, and then require her to litigate the
"unreasonable and unfair" issue in that foreign jurisdiction or suffer
a default judgment that will be very difficult to attack once the
Sheriff arrives in the residence state with a writ of execution."
"The Draft's choice of forum provision is way out of balance; it
is all the more so when the assent provisions of the Draft form the
basis for the non-drafter's agreement to it."
http://www.ali.org/ali/Woodward2.htm
-Jim
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