Kevin M. Clermont (Cornell Law School) has posted Reconciling Forum-Selection and Choice-of-Law Clauses (American University Law Review Forum, 2020) on SSRN. Here is the abstract:
When a contract includes both a forum-selection clause and a choice-of-law clause, which sovereign’s law governs the forum-selection clause? Does the seised court first apply its own law to the forum-selection clause or does it look first to the parties’ chosen law to enforce and interpret the forum-selection clause? It is a chicken-or-egg conundrum.
On the basis of case law and policy arguments, I argue that lex fori governs the enforceability and validity of the forum-selection agreement. But the whole chosen law, if there is a choice-of-law clause, or the whole law of the chosen court, if there is no choice-of-law clause, should apply to interpretation or construction of the forum-selection agreement.
Yeah! Clermont rocks. Highly recommended.