3 Chi J Intl L 301
Erin Ann O’Hara

There has been an increase in the freedom to use choice of law and choice of forum provisions to resolve future disputes between contracting parties conferred by the US Supreme Court and lower federal courts, over the past three decades. This article begins by exploring the durability of courts’ enforcement of forum-selection clauses, whether they are found in arbitration clauses or clauses selecting a certain country’s courts to litigate in. A background for understanding the position of federal courts on enforcing forum-selection clauses is provided by tracing through several US Supreme Court cases beginning with Bremen v. Zapata Off-Shore Corporation. A description of federal courts’ treatment of forum-selection clauses under COGSA follows. The article then discusses how congressional interference may affect enforceability and suggests what conditions are necessary for forum-selection clauses to be enforced over the long-term. By distinguishing between forum-selection clauses that add value to the contract and those that fail to add value, the author explains how those that fail to add value are unlikely to be enforced by either treaties or courts. The article concludes that by equating international shipping contracts to non-value added clauses, and suggests that shippers and carriers may be better served through arbitration provisions.