Eleventh Circuit Reverses Prior View and Holds That Forum and Choice of Law Clauses Cannot Be Invalidated Pre-Arbitration Despite the Loss of the Right To Pursue a Federal Claim...


New Interpretion of Challenge Mechanism in the New York Convention Offered

An important area within international dispute resolution is the extent to which courts will override parties’ choice of law and forum in the name of public policy. (See generally the discussion of choice of law/choice of forum and their impact on enforceability in our e-book, International Practice: Topics and Trends).

The Eleventh Circuit has now weighed in on a specific and timely example of this issue, on which we have posted on several times (e.g., here and here): Whether a plaintiff can avoid a choice of law/choice of forum agreement it made could be avoided on grounds of being contrary to public policy when the plaintiff is or might be deprived of the right to assert and prosecute a claim under U.S. federal law. The decision was filed in Lindo v. NCL (Bahamas), Ltd., No. 10-10367 (11th Cir. 2011), and consists of a 67-page majority decision writtten by Judge Hull and a 22-page dissent by written by Judge Barkett.

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