Law Commons^™

Governing Law On Forum-Selection Agreements, Kevin M. Clermont

Cornell Law Faculty Publications

The task of determining which law governs a contractual choice-of-forum clause is an enigma to courts. The key to its solution lies at the very heart of the subject, where one encounters its most celebrated riddle: Which law governs when the parties have also agreed to a choice-of-law clause-that is, does a court first test the forum-selection clause under the law of the seised forum, or does one first look at the parties' choice of law to apply the chosen law to the forum-selection clause?

This chicken-or-egg mystery throws courts into contortions. Prior commentators have opted for the chosen law. …

Damages Versus Specific Performance: Lessons From Commercial Contracts, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Specific performance is a central contractual remedy but, in Anglo-American law, generally is subordinate to damages. Despite rich theoretical discussions of specific performance, little is known about parties' treatment of the remedy in their contracts. We study 2,347 contracts of public corporations to quantify the presence or absence of specific performance clauses in several types of contracts. Although a majority of contracts do not refer to specific performance, substantial variation exists in the rates of including specific performance clauses. High rates of specific performance use in the area of corporate combinations through merger (53.4 percent) or assets sales (45.1 percent), …

Seeing The Whole Elephant: A Comprehensive Framework For Analyzing Resource-For-Infrastructure Contracts As Intended By The Parties, Dunia P. Zongwe

Southern African Journal of Policy and Development

The current state of scientific knowledge on resource-for-infrastructure (R4I) contracting is unclear and based on inadequate empirical grounds. As a result, it is not easy to tell a R4I contract apart from other forms of international business transactions, let alone describe it in a comprehensive, accurate and meaningful way. Such state of affairs is concerning given the dramatic transformative impact of R4I contracts. This article sheds light on R4I contracts and proposes a broad framework for analyzing these multibillion-dollar deals. It looks to the contracting parties’ intentions – as expressly set out in the texts of contractual and official documents …