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Shall is mandatory in a forum-selection clause, says D.C. Circuit

The D.C. Circuit held yesterday that shall was mandatory in a contract’s forum-selection clause saying that a Saudi grievance council “shall be assigned for settlement of any disputes or claims arising from” the contract. See D&S Consulting, Inc. v. Kingdom of Saudi Arabia, No. 18-7140, slip op. at 5-6 (D.C. Cir. June 19, 2020) (affirming dismissal; citations omitted).

The contrary argument isn’t frivolous; as the D.C. Circuit noted: “To be sure, one way to make a clause mandatory is to specifically refer to the designated forum as ‘exclusive’ of other fora.” One could argue that any waiver of the right to sue in an otherwise-proper forum must be clear and unmistakable, and that the forum-selection clause doesn’t meet that standard.

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