Forum selection
Exclusive jurisdiction
Think very carefully before approving an exclusive-jurisdiction forum selection clause. You might not want to be forced to litigate in one particular place, even in your home jurisdiction.
Litigating in the other party’s home jurisdiction can significantly increase the expense of litigation for the “visiting team,” especially if the case ends up going to trial. Moreover, the visitors may have a legitimate concern about the other side’s home-court advantage.
On the other hand, if a potential plaintiff expects it will want speedy relief (for example, a preliminary injunction), it might make sense to agree that it will bring suit exclusively in the defendant’s home jurisdiction. Several crucial litigation tasks are likely to go faster there, such as service of process on the defendant and subpoenas for local witnesses.
(For the same reason, it might also make sense to agree to a governing-law clause stating that the law of the defendant’s home jurisdiction will apply — a judge in that jurisdiction will already be familiar with the local law, and proving up a ‘foreign’ law won’t be necessary.)
Non-exclusive jurisdiction
Sometimes a useful compromise is to agree that suit may be brought in either party’s home jurisdiction. A downside of this approach is that it can trigger a race to the courthouse.
Agree to sue only in defendant’s jurisdiction
Another possible compromise is to require that any action must be brought in the court(s) having jurisdiction in the other party’s principal place of business. This suffers from some of the same defects as exclusive jurisdiction (see above) and doesn’t seem to be found in many contracts.