102 Iowa L. Rev. 353 (2016)

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Abstract

Beginning as dicta tucked away in an inconspicuous footnote, Delaware forum-selection clauses have become widely favored by corporations across the United States. Catapulted by corporations’ desire to funnel expensive multijurisdictional litigation into a single forum, the clauses, which were nearly non-existent five years ago, have become ubiquitous. A revision to the General Corporation Law of the State of Delaware officially blessed forum-selection clauses in the summer of 2015, and there is little doubt that the clauses will enjoy even greater popularity in the future. Against this backdrop of success within Delaware, however, it is easy to lose sight of the national landscape. While courts outside of Delaware generally have enforced these clauses, there have been notable exceptions. This Note argues that companies crafting Delaware forum-selection clauses under DGCL § 115 should consider their enforceability outside of Delaware. This Note surveys the relevant federal and state litigation pertaining to Delaware forum-selection clauses and makes recommendations for drafting these clauses with an eye toward enforcement. It concludes with a proposed model Delaware forum-selection clause.