While forum selection clauses in construction contracts that specify where legal disputes are to be brought and decided may not seem very important, it is inevitable that some projects will end up in litigation. And when they do, those forum selection clauses can make a big difference. Most contractors (and their attorneys) prefer the home court advantage
That said, if not expressed correctly, the forum selection clause may only be permissive and not mandatory. What this means is that while contractors thought they were selecting the place where disputes would be addressed, they may have simply selected a preferred venue but not precluded the selection of a different place by the opposing party. A mandatory clause, on the other hand, states clearly that jurisdiction and venue are appropriate exclusively and only in the chosen location and court.
Just using the term “shall” may appear to be sufficient to establish that the forum selection is mandatory. But many courts have ruled that this is not necessarily so. Stating that one court, for example, the Circuit Court of Miami Dade County, Florida, should be the forum does not in and of itself mean that other courts do not have jurisdiction.
If the parties want that certainty, then they must state their desire unequivocally and unambiguously. Being precise counts. If a contractor wants to be in a particular court, then the forum selection clause in a contract should specifically state that that particular court shall have sole and exclusive jurisdiction to hear any dispute.
