Noah Yavitz Discusses Delegating Enforceability of Corporate Forum Selection Provisions in Harvard Law School Forum on Corporate Governance

A new article in the Harvard Law School Forum on Corporate Governance by litigation & enforcement partner Noah Yavitz proposes a novel solution to the growing problem of non-Delaware courts reaching divergent conclusions on the enforceability of forum selection provisions in corporate charters and bylaws. Drawing on the well-established framework for delegation clauses in arbitration agreements, Noah argues that Delaware corporations should adopt bylaw provisions expressly delegating threshold questions about the scope, validity, and enforceability of their forum selection clauses to the Delaware Court of Chancery.

The article examines recent decisions that underscore the risks of inconsistent interpretation of Delaware corporate law across jurisdictions. Noah contends that delegation provisions would promote uniformity, leverage Delaware's institutional expertise, and conserve judicial resources.