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VOL. 76 PART 3 MAY 2018
of British Columbia pursuant to the statutory tort set out in s. 3(2) of the
If, however, the British Columbia court declines to set aside the choice of
law clause, then California law will be applied. Facebook will have to plead
and prove the domestic tort law of California through expert witnesses to
the satisfaction of the British Columbia court. Failure to satisfy the court
will result in the application of British Columbia law.43 The California law
pleaded and proved will be limited to the domestic tort law of that state
because the clause is drafted so as to avoid the possibility of renvoi in any
claim. California conflicts choice of law rules are excluded “without regard
to conflict of laws provisions”. The courts often reiterate that renvoi has no
place in contracts44 but the High Court of Australia recently imported renvoi
into torts.45 Therefore, the exclusion of renvoi by the choice of law clause is
more significant than it might be in a contract action.
Damages for Breach of the Forum Selection Clause?
Facebook might apply for an anti-suit injunction from a California court.
California would have in personam jurisdiction because Ms. Douez has submitted
to its jurisdiction in advance of any dispute arising by way of the
jurisdiction selection clause in the contract, so California would be protecting
its agreed-to jurisdiction. However, even if Facebook were successful in
such an application, Ms. Douez might simply ignore the anti-suit injunction
and continue the action in British Columbia. The anti-suit injunction would
be a brutum fulmen. Facebook might, therefore, seek an alternative remedy.
For instance, Facebook might counterclaim for damages for breach of the
forum selection clause in the British Columbia action, or make a claim for
damages for breach of contract against Ms. Douez in a California action. In
either jurisdiction, the claim for damages would be premised on the breach
of contract in failing to comply with the choice of forum clause in the contract.
It does not follow from the fact that courts are not bound by jurisdiction
selecting clauses that the contracting parties are also not bound. In the
SCC, only Abella J. held that the jurisdiction-selecting clause was not binding.
The six other members of the court, although they disagreed on the
issue of whether strong cause had been established by Ms. Douez, agreed
that the selection of California as the forum for litigation was a binding contractual
Dicey notes that there was little English case authority to support the
principle of awarding damages for breach of forum-selection clauses until
2001.46 Even in 2017, one cannot point to a high volume of cases. But a
respectable number of English appellate cases do support the awarding of
damages for breach of a forum selection clause,47 and scholarly examination