Business Court Clauses: Contracts Are Key to Securing Business Court Jurisdiction

A famed politician once remarked: “If I let you write the substance and you let me write the procedure, I’ll [beat] you every time.” And, in nearly 20 years of litigating contracts, I’ve seen those words repeatedly proven true. Forum selection clauses. Arbitration and dispute resolution provisions. Choice of law requirements. These procedural provisions, once enforced by a court, often make the greatest difference in a case’s outcome. Most litigators who have practiced for even just a few years can probably regale you with war stories on this score — if you let them. They can tell you about parties who abandoned their whole case after being compelled to arbitration under an arbitration clause. They’ll probably describe the thrill they felt after getting a case dismissed without prejudice by one court under a forum selection clause and then with prejudice by the second court after the case was grudgingly refiled in the proper jurisdiction the plaintiff originally tried to avoid. They might also brag about how they were able to leverage a settlement demand (up or down) after prevailing on a choice of law provision. But none of these litigators would have anything to brag about without the help of the attorney who drafted the…