CLS Blue Sky Blog

Introducing Unilateral Choice-of-Law Clauses

Over the past decade, so-called “unilateral” or “asymmetric” forum selection clauses have attracted a lot of attention. A unilateral forum selection clause does not name a court in which to resolve disputes at the time of signing. Instead, it gives one contracting party the right to unilaterally select a court after the dispute arises. In some cases, the courts have held that such clauses are enforceable. In others, they have held that they are not.

The possibility of writing unilateral choice-of-law clauses into agreements has, to date, attracted much less attention. A unilateral choice-of-law clause does not choose a law to govern the contract at the time of signing. Instead, it gives one party the right to unilaterally select a governing law after the dispute arises. In all my reading and research into these provisions, I had never come across a contract that contained a unilateral choice-of-law clause until last month, when Symeon Symeonides referenced this clause in the non-disclosure agreement between Donald Trump and Stormy Daniels:

This Agreement . . . shall in all respects be construed, interpreted, enforced and governed by the laws of the State of California, Arizona or Nevada at [Trump]’s election.

This was the first choice-of-law clause that I can recall seeing that gave one party the power to choose the governing law after the dispute arose. If such clauses were to become widely used, and if they were to be upheld by the courts, they could fundamentally reshape the way that contract drafters think about choice-of-law clauses. In this post, I first explain why these clauses are useful. I then consider whether they are enforceable.


It is very difficult to know, at the time of signing, which jurisdiction’s law will favor your position should a dispute arise. Will the claim sound in tort? In contract? In a statute? What issue is likely to prove dispositive? In recognition of this problem, many parties simply select the law of their home jurisdiction instead of trying to choose a law that advances their interests. To quote a prior post:

Interviews with practicing attorneys suggest that most companies do very little research into the content of the law that they select in their choice-of-law clauses. Instead, they choose the law of the jurisdiction in which they are headquartered and call it a day. This decision-making process helps to explain why Google chooses California law to govern its contracts and why Microsoft chooses Washington. These companies are not seeking to “game” the choice-of-law issue by selecting a law that is substantively favorable to them. (If they were, Google’s lawyers would be crazy to choose the famously pro-plaintiff law of California.) They are choosing the law of a place with which their lawyers are already familiar on the theory that this familiarity may provide an advantage should the company wind up in litigation with a counterparty based in another state.

A unilateral clause could upend this calculus. If Google were to replace its standard California choice-of-law clause with one giving it the right to select the law of any state it wanted after the dispute arose, this could give it a significant tactical advantage in litigation with its business partners. Alternatively, Google might craft a narrower clause that gave it the right to select either the law of California or the law of the plaintiff’s home jurisdiction. Since California law is more plaintiff friendly than most other jurisdictions, and since Google is more likely to be a defendant rather than a plaintiff, the ability to choose the law of the counterparty’s jurisdiction could prove useful.


The hard question is whether the courts would be willing to enforce unilateral choice-of-law clauses. The existing case law relating to unilateral forum selection clauses suggests that the most aggressive version of a new clause — the one that gives the drafter the power to select any law at the time of the dispute — would probably not be upheld. U.S. courts have generally declined to enforce clauses that give one party the right to sue in the court of their choice. These courts have reasoned that such provisions are impermissibly vague and do nothing to promote certainty and predictability.

These same courts have, however,  enforced so-called “floating” forum selection clauses that contemplate the possibility that the identity of the chosen jurisdiction may change over the life of the contract. They have, for example, enforced clauses that require one party to sue in the jurisdiction where the other party’s  headquarters are located, even if the location of those headquarters moves after the time of signing. They have similarly enforced clauses that require one party to file suit in the jurisdiction of any party to whom the contract is assigned, even if the possibility of assignment was not clearly explained at the time of signing. If the unilateral forum selection clause selects a specific jurisdiction, there is a good chance that the courts will enforce it even if the identity of that jurisdiction is subject to change.

This analogous line of cases suggests that the courts may well uphold a unilateral choice-of-law clause that gives one party a limited right to choose the law after the dispute arose. If a clause gave one party the right to choose either the law of its home jurisdiction or the home jurisdiction of its counterparty, for example, it would probably be upheld if it were written into a contract between two businesses. Such a clause would, in effect, give one party the option of choosing between a familiar law and a law of a different jurisdiction that may be substantively favorable to it. So long as the choice is limited in this way, the current case law on unilateral forum selection clauses suggests that it would be endorsed by the courts.


The appeal of unilateral choice-of-law clauses is easy to see. They give one contracting party the flexibility to choose the governing law after the dispute arises. The question is whether these provisions are enforceable. Until parties start writing unilateral choice-of-law clauses into their contracts in greater numbers, this question will remain unanswered.

This post comes to us from Professor John Coyle at the University of North Carolina School of Law. A version is posted at Transnational Litigation Blog.

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