Governing Law and Jurisdiction Clauses: Choosing the Right Legal Framework

When drafting contracts, particularly those with international implications, few provisions hold as much strategic importance as governing law and jurisdiction clauses. These clauses determine which legal system will interpret your contract and which courts will adjudicate disputes. Making informed choices about these provisions can mean the difference between a straightforward resolution process and years of costly, complex litigation.

Understanding Governing Law and Jurisdiction Clauses

Governing law and jurisdiction clauses serve distinct but complementary functions within a contract’s framework.

Governing Law Clauses specify which jurisdiction’s substantive laws will apply to interpret and govern the contract. This choice determines how contract provisions are construed, what implied terms might be read into the agreement, and what remedies are available in case of breach.

For example:

“This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice of law or conflict of law provisions.”

Jurisdiction Clauses (also known as forum selection clauses) identify which courts or tribunals have the authority to hear and resolve disputes arising from the contract. These clauses establish where litigation may occur, which can significantly impact procedural rules, judicial expertise, and practical considerations like cost and convenience.

For example:

“The parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales for resolution of any disputes arising under or in connection with this Agreement.”

While these clauses are often combined, they address separate questions: governing law determines which rules apply, while jurisdiction determines who decides disputes according to those rules.

The Strategic Importance of Jurisdiction Clauses

Well-crafted governing law and jurisdiction clauses provide several critical benefits that extend far beyond mere boilerplate considerations:

• Legal Certainty and Predictability: By explicitly selecting the legal framework that will govern your contract, you remove ambiguity about applicable laws and competent courts. This certainty allows parties to better anticipate their rights and obligations.
• Risk Management: These clauses permit strategic selection of favorable legal environments. For instance, choosing a jurisdiction with well-developed commercial law or particular expertise in your industry can provide substantial advantages.
• Efficiency in Dispute Resolution: Preselecting jurisdiction prevents parties from engaging in preliminary “battles” over where litigation should occur, saving time and resources when disputes arise.
• Enforcement Advantages: Some jurisdictions offer more efficient enforcement mechanisms or provide more consistent interpretation of certain contract types, making them strategic choices for specific agreements.

As DLA Piper notes, “Clear governing law and jurisdiction clauses are essential to provide certainty as to how and where disputes will be resolved.” Without them, parties face uncertainty about which laws apply and which courts have jurisdiction—potentially leading to parallel proceedings in multiple jurisdictions.

Types of Jurisdiction Clauses

Not all jurisdiction clauses function identically. Understanding the different types is essential for making strategic choices that align with your business objectives.

1. Exclusive Jurisdiction Clauses

Exclusive clauses mandate that disputes must be resolved only in the specified courts or tribunals, to the exclusion of all others. These provisions provide the greatest certainty about where litigation will occur.

Example:

“Any dispute arising out of or in connection with this contract shall be subject to the exclusive jurisdiction of the courts of Singapore.”

Exclusive clauses are particularly valuable when parties want to ensure that disputes are handled in a specific, familiar, or favorable judicial system. They effectively prevent either party from initiating proceedings in alternative venues.

2. Non-Exclusive Jurisdiction Clauses

Non-exclusive clauses allow parties to bring proceedings in the specified jurisdiction but do not prevent them from initiating action in other courts that might have jurisdiction. These clauses provide flexibility while still establishing a default forum.

Example:

“The parties submit to the non-exclusive jurisdiction of the courts of the State of California for the resolution of any disputes arising under this Agreement.”

Non-exclusive clauses can be beneficial when parties anticipate that enforcement actions might be necessary in multiple jurisdictions, or when they want to preserve the ability to pursue remedies in courts with particular expertise.

3. Asymmetric Jurisdiction Clauses

These sophisticated clauses grant different rights to different parties. Typically, one party (often the stronger party or the one extending credit) has the option to choose among multiple forums, while the other party is restricted to a single jurisdiction.

Example:

“Party A agrees to submit to the exclusive jurisdiction of the courts of France. Party B may bring proceedings against Party A in the courts of France or in any other court of competent jurisdiction.”

Asymmetric clauses are common in financial agreements, where lenders want to preserve maximum flexibility to pursue defaulting borrowers. However, some jurisdictions have recently questioned the enforceability of these clauses on grounds of mutuality and fairness.

Key Considerations When Choosing Governing Law

Selecting the appropriate governing law requires careful analysis of several factors that can significantly impact contract interpretation and enforcement.

1. Connection to the Transaction

Courts are more likely to uphold governing law selections that have a reasonable connection to the transaction or the parties. Consider choosing:

• The law of a party’s place of incorporation or principal place of business
• The law of the jurisdiction where performance will primarily occur
• The law of the jurisdiction where the subject matter of the contract is located

As Pinsent Masons observes, “While most jurisdictions respect party autonomy in choosing governing law, some require a reasonable connection between the chosen law and the contract.”

2. Substantive Legal Advantages

Different legal systems offer different advantages depending on the contract type.

For example:

• English law is often preferred for financial contracts due to its predictability and pro-creditor stance
• New York law is commonly chosen for capital markets transactions due to its well-developed jurisprudence
• Delaware law is frequently selected for corporate matters because of its sophisticated business law framework

According to Gowling WLG, “The substantive differences between legal systems can have significant financial implications for contracting parties.”

3. Enforcement Considerations

Consider whether the chosen law will:

• Recognize and enforce certain contract provisions (e.g., liquidated damages, limitation of liability clauses)
• Provide adequate remedies for potential breaches
• Allow for specific performance or injunctive relief when needed

4. Familiarity and Expertise

Practical considerations like your legal team’s familiarity with the chosen law and access to qualified local counsel should not be overlooked. Operating under an unfamiliar legal system can significantly increase legal costs and risks.

5. Industry-Specific Considerations

Some jurisdictions have developed particular expertise or favorable precedents in certain industries, making them natural choices for specific contract types. For example:

• Maritime contracts often specify English law due to London’s long history as a shipping center
• Technology agreements might benefit from California law due to its developed body of intellectual property jurisprudence
• Construction contracts might benefit from jurisdictions with well-established engineering dispute resolution processes

Drafting Best Practices for Governing Law and Jurisdiction Clauses

Effective governing law and jurisdiction clauses require precise, thoughtful drafting to achieve the intended legal effects. Here are key drafting principles:

1. Use Clear and Unambiguous Language

Avoid vague terminology that could create interpretive disputes. Specify the exact jurisdiction (e.g., “State of New York” rather than just “New York”) and clearly state whether jurisdiction is exclusive or non-exclusive.

Example of clear drafting:

“This Agreement shall be governed by and construed in accordance with the laws of the State of California. The parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California.”

2. Properly Define Scope

Clearly define what matters fall within the clause’s scope. Consider whether it covers:

• All disputes “arising out of” the contract (narrower scope)
• All disputes “relating to” the contract (broader scope)
• Both contractual and non-contractual disputes (e.g., tort claims)

According to Adams Drafting, “The scope of a governing law provision should be broad enough to encompass all claims that might arise in connection with the contract, including tort claims and statutory claims.”

3. Address Conflict of Laws Rules

Specify whether the chosen law includes or excludes that jurisdiction’s conflict of laws principles. Without this clarity, courts might apply “renvoi” (the process where conflict rules might refer back to another jurisdiction’s law).

Example:

“This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law or conflict of law provisions.”

4. Consider Using Separate Clauses

While governing law and jurisdiction provisions are related, consider drafting them as separate clauses to reduce ambiguity and address their distinct purposes more precisely.

5. Address Procedural Matters

Consider including additional details about procedural matters, such as:

• Service of process procedures
• Waiver of objections to venue
• Waiver of jury trial (where permitted)
• Consent to specific relief (like injunctions)

6. Coordinate with Other Contract Provisions

Ensure your governing law and jurisdiction clauses align with other related provisions, particularly:

• Dispute resolution clauses (arbitration, mediation)
• Force majeure provisions
• Limitation of liability clauses
• Notice requirements

As Kirkland & Ellis notes, “Inconsistencies between governing law, jurisdiction, and dispute resolution provisions can create significant complications when disputes arise.”

Enforceability Challenges and Limitations

Even well-drafted clauses face potential enforceability challenges. Understanding these limitations is essential for creating realistic expectations and developing contingency strategies.

1. Public Policy Exceptions

Courts may refuse to enforce governing law choices that violate fundamental public policy. For example:

• Consumer protection laws in many jurisdictions cannot be circumvented by choice of law
• Employment protection provisions may be mandatory regardless of chosen law
• Competition/antitrust regulations often apply despite contractual provisions to the contrary

2. Mandatory Local Laws

Some types of laws apply regardless of the parties’ choice, particularly in areas like:

• Real property (the law where property is located often governs)
• Intellectual property (territorial protection principles often prevail)
• Insolvency (local insolvency regimes typically override contractual provisions)
• Regulatory compliance (local regulations must be followed regardless of governing law)

3. Forum Non Conveniens

Courts may decline jurisdiction—even where parties have agreed to it—if they determine another forum is significantly more convenient or appropriate. Factors considered include:

• Location of witnesses and evidence
• Connection of the dispute to the forum
• Burden on the court system
• Public interest considerations

According to Norton Rose Fulbright, “The doctrine of forum non conveniens can sometimes override jurisdiction clauses if a court determines that another forum is manifestly more appropriate.”

4. Special Requirements in Some Jurisdictions

Some countries impose specific requirements for enforcing choice of law and jurisdiction clauses, such as:

• The clauses must be prominently displayed or separately signed
• They must be explicitly negotiated rather than included in standard terms
• There must be a reasonable connection between the chosen law/forum and the transaction

Common Pitfalls to Avoid

The most effective governing law and jurisdiction clauses are those that avoid these common drafting errors and strategic oversights:

1. Ambiguity and Lack of Specificity

Vague clauses create interpretation challenges. Avoid language like “the laws of Europe” or “courts in New York” without specifying whether you mean state or federal courts.

As Moretsky Law points out, “Ambiguous jurisdiction clauses can lead to costly preliminary litigation just to determine where the main dispute should be heard.”

2. Failing to Consider Practical Enforcement Issues

Having a judgment is only useful if it can be effectively enforced. Consider whether judgments from your chosen jurisdiction will be recognized in locations where the counterparty has assets.

3. Neglecting to Address Non-Contractual Claims

Narrow clauses may not cover related tort claims, statutory violations, or other non-contractual disputes. Consider broadening language to include all disputes “arising out of or relating to” the contract.

4. Inconsistency Across Agreement Suite

In complex transactions involving multiple related agreements, inconsistent governing law and jurisdiction clauses across documents can create significant complications. Consider harmonizing these provisions across the entire transaction structure.

According to Silvesterlegal, “Inconsistent dispute resolution provisions across related agreements can lead to parallel proceedings and potentially contradictory outcomes.”

5. Assuming One-Size-Fits-All Approach

Different transactions require different approaches. What works for a financing agreement may not be appropriate for a technology licensing deal. Tailor your clauses to the specific transaction and industry context.

6. Governing Law and Jurisdiction for International Contracts

International contracts present unique challenges that require additional considerations when drafting governing law and jurisdiction clauses.

Strategic Approaches for Different Contract Types

Different types of agreements benefit from tailored approaches to governing law and jurisdiction clauses.

1. Commercial Contracts

For general commercial agreements like sales, distribution, or services contracts:

• Choose law that provides certainty for the specific transaction type
• Consider industry norms and practices
• Balance convenience with favorable substantive law

2. Financial Agreements

For loan agreements, security documents, and other financial contracts:

• Lenders typically prefer laws with strong creditor protections (e.g., New York, English law)
• Jurisdiction should align with where enforcement is most likely needed
• Consider including asymmetric clauses giving lenders flexibility

3. Intellectual Property Agreements

For licensing, technology transfer, and IP-related contracts:

• Choose jurisdictions with strong IP protection frameworks
• Consider territorial nature of IP rights
• Address jurisdiction for infringement claims separately from contractual disputes

4. Corporate Transactions

For M&A, joint ventures, and corporate structuring:

• Align governing law with target company’s jurisdiction when possible
• Consider regulatory approval requirements
• Address specific local laws that may override chosen law (e.g., securities regulations)

A Practical Checklist for Drafting and Review

When drafting or reviewing governing law and jurisdiction clauses, use this comprehensive checklist to ensure you’ve addressed key considerations:

• Is the governing law clearly and specifically identified?
• Is the jurisdiction clause explicitly labeled as exclusive or non-exclusive?
• Have you addressed whether conflict of laws rules apply?
• Does the scope cover both contractual and related non-contractual disputes?
• Are the governing law and jurisdiction provisions consistent with other dispute resolution clauses?
• Have you considered mandatory laws that might override your chosen law?
• Is your chosen court likely to enforce the jurisdiction clause?
• Will judgments from your chosen jurisdiction be enforceable where the counterparty has assets?
• Have you addressed service of process and procedural considerations?
• For international contracts, have you considered applicable treaties and conventions?
• Does your choice align with the subject matter and nature of the transaction?
• Have you consulted with local counsel in the chosen jurisdiction if needed?

Using modern AI-Native CLM platforms can help streamline this review process by automatically flagging potential issues with governing law and jurisdiction clauses during contract creation and negotiation.

Why Governing Law and Jurisdiction Matter in Contract Management

In contract management, governing law and jurisdiction clauses aren’t just legal fine print—they’re strategic levers that can significantly impact contract performance and dispute resolution. With a modern CLM solution like Sirion, organizations can bring structure, visibility, and control to how these clauses are managed across their contract portfolio.

Sirion helps legal and business teams move beyond static templates by enabling clause-level insights, automated risk assessments, and AI-driven suggestions tailored to the nature of each contract. Instead of treating governing law and jurisdiction as afterthoughts, Sirion makes it easier to analyze historical clause usage, evaluate enforceability across jurisdictions, and align choices with business priorities.

A well-integrated contract management system like Sirion empowers teams to:

1. Choose Strategically – Select laws and forums that reduce risk and align with commercial strategy.
2. Draft Precisely – Standardize yet customize language for clarity, scope, and enforceability.
3. Assess Risk Intelligently – Spot inconsistencies and anticipate enforcement hurdles with data-backed insights.
4. Coordinate Seamlessly – Align governing law and jurisdiction with other dispute resolution mechanisms across your contracts.

By embedding this discipline into your contract lifecycle with a tool like Sirion, you’re not just improving legal hygiene—you’re building stronger contracts from the ground up.

Strategic Guidance for Better Legal Outcomes

Governing law and jurisdiction clauses shape how your rights are protected and how disputes are resolved. When managed through a platform like Sirion, these clauses become easier to standardize, track, and tailor—leading to better legal outcomes with less friction. Instead of retroactive fixes, you gain a proactive edge: reducing ambiguity, minimizing disputes, and enabling your contracts to perform with more certainty.

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