Since their introduction nearly two decades ago,[1] forum selection provisions have become standard in modern corporate governance, with Delaware corporations routinely designating the Court of Chancery as the exclusive forum for “internal affairs” disputes. Yet questions persist about the construction, scope, and enforceability of these provisions—questions that implicate important issues of Delaware corporate law but are often decided by courts outside Delaware.

Consider the recent California Supreme Court decision in EpicentRx, Inc. v. Superior Court, which reversed lower court rulings that had declined to enforce forum selection provisions in a corporation’s charter and bylaws on public policy grounds.[2] While ultimately holding that California’s jury trial policy did not bar enforcement, the court remanded for consideration of whether the provisions were “freely and voluntarily negotiated”—a Delaware law question that California courts must now address.[3]

Similar tensions arise with claims under federal securities laws. Forum selection provisions in charters and bylaws that channel derivative Section 14(a) proxy fraud claims to Chancery have generated particularly acute conflicts—the Ninth Circuit, in Lee v. Fisher, recently upheld such provisions, finding them consistent with both Delaware and federal law, while a divided panel of the Seventh Circuit concluded the opposite in Seafarers Pension Plan v. Bradway.[4]

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