Background

• Global Seafood is a Connecticut corporation seeking breach of contract damages against Bantry Bay Mussels Ltd., an Irish company, related to a Heads of Agreement governing Bantry Bay mussels in North America.
• Bantry Bay argues the Heads of Agreement may be a non-binding letter of intent under Irish law; the contract documents were signed by both parties and include a forum clause.
• The Heads of Agreement contains a provision stating the Agreement is governed by Irish Law and the Irish Courts, referenced as a forum selection clause at issue in this appeal.
• Global Seafood filed suit in the District of Connecticut for termination provisions, alleging Bantry Bay failed to honor termination notice and commissions; Bantry Bay challenged venue based on the clause.
• The district court held the clause mandatory, dismissing for improper venue; Global Seafood appealed arguing the clause is permissive.
• The Second Circuit vacated the district court’s dismissal, holding the clause is permissive and not exclusive, remanding for further proceedings.

Issues

Key Cases Cited

• Phillips v. Audio Active Ltd., 494 F.3d 378 (2d Cir. 2007) (four-part test for forum selection clauses; are to be brought in designated forum if mandatory)
• Boutari & Son, Wines & Spirits, S.A. v. Attiki Imps. & Distribs. Inc., 22 F.3d 51 (2d Cir. 1994) (language confers jurisdiction but not exclusive venue without exclusionary terms)
• S.K.I. Beer Corp. v. Baltika Brewery, 612 F.3d 705 (2d Cir. 2010) (language determining mandatory vs. permissive forum selection)
• Salis v. American Exp. Lines, 331 Fed.Appx. 811 (2d Cir. 2009) (mandatory clause with explicit designated forum language)
• Macsteel Intl USA Corp. v. M/V Larch Arrow, 354 Fed.Appx. 537 (2d Cir. 2009) (to be decided in London; explicit forum language as mandatory)