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Understanding public policy limits to the enforceability of forum selection clauses after Douez v Facebook
Journal of Private International Law  (IF),  Pub Date : 2019-01-02, DOI: 10.1080/17441048.2019.1599773
Liam W. Harris

This article explores the nature of public policy limits to the enforcement of forum selection clauses, recently considered by the Supreme Court of Canada in Douez v Facebook. The public policy factors relied on by the plurality of the Court, inequality of bargaining power and the quasi-constitutional nature of the right at issue, possess neither the doctrinal clarity nor the transnational focus necessary to guide the deployment of public policy in this context. Here, I argue for a public policy exception to the enforcement of forum selection clauses based on the doctrine of mandatory overriding rules. This approach would focus on whether a forum selection clause has the effect of avoiding the application of local norms intended to enjoy mandatory application in the transnational context. This conception of public policy would be a more coherent guide to the exercise of courts’ discretion to enforce forum selection clauses in cases like Douez.