Overview
Jurisdiction and venue clauses determine where disputes will be litigated. While they may seem like boilerplate, these clauses have significant practical impact. Being forced to litigate in a distant forum can effectively prevent you from enforcing your rights due to cost and logistical barriers.
This guide covers strategies for negotiating fair forum selection terms, handling pushback on your proposals, and understanding when remote litigation provisions are worth accepting.
Key Principle
The goal is not necessarily to "win" on jurisdiction - it's to ensure you have a practical path to enforce your rights if the agreement is breached. A neutral forum with reasonable procedures often serves both parties better than a drawn-out fight over venue.
Core Negotiation Strategies
Non-exclusive jurisdiction is often the easiest path to agreement. It means both parties consent to jurisdiction in the specified courts, but other courts with proper jurisdiction are not excluded.
- Preserves flexibility for both parties
- Still provides certainty that the specified courts will accept the case
- Less likely to trigger pushback than exclusive provisions
- Useful fallback when exclusive jurisdiction in your home courts is rejected
When both parties want their home courts, a neutral third venue can break the deadlock:
- Delaware: Well-developed commercial law, Court of Chancery has specialized expertise
- New York (Manhattan): Sophisticated commercial courts, parties often agree to this
- Geographic Midpoint: If parties are in different regions, split the travel burden
- Major Business Hub: Cities with good airports and legal talent pools
Even if you accept venue restrictions generally, preserve the right to seek emergency injunctive relief wherever needed:
- Temporary restraining orders to stop ongoing disclosure
- Preliminary injunctions pending resolution in the primary forum
- Orders to preserve evidence or prevent destruction
- Any court where the harm is occurring should be available
Sample language: "Notwithstanding the foregoing, either party may seek temporary restraining orders, preliminary injunctions, or other emergency equitable relief in any court of competent jurisdiction to protect its Confidential Information."
If you must accept a distant venue, negotiate terms that reduce the burden:
- Remote Appearances: Include language permitting video appearances for non-evidentiary hearings
- Written Discovery: Agree that depositions can occur via video conference
- Local Counsel: Acknowledge that local counsel requirements are separate from trial participation
- Fee-Shifting: If you must travel, negotiate that the losing party pays travel costs
Common Pushback and Responses
🔴 "We require exclusive jurisdiction in our home courts - it's our standard term"
Your Response:
"We understand you have standard terms, but exclusive jurisdiction in [their location] would effectively prevent us from enforcing our rights due to the cost and logistics of litigating there. We propose non-exclusive jurisdiction, which still allows you to sue us in your courts but preserves our ability to bring claims where it's practical. This is fairer given that we're both sharing confidential information."
🔴 "Our legal team won't approve venue outside our state"
Your Response:
"I'd be happy to explain our position to your legal team directly. From a risk management perspective, non-exclusive jurisdiction actually benefits you - you retain the right to sue in your home courts while we can bring claims where practical. Alternatively, we could agree to a neutral venue like Delaware or New York, which are commonly used for commercial agreements between parties in different states."
🔴 "We need the jury trial waiver for all our agreements"
Your Response:
"Jury trial waivers generally benefit the party with more legal resources, since bench trials favor those who can afford experienced commercial litigators. For an NDA involving mutual obligations, we prefer to preserve jury trial rights. If this is a dealbreaker, we could consider it in exchange for a fee-shifting provision - if we're waiving jury trial, the prevailing party should recover attorneys' fees to level the playing field."
🔴 "We can't carve out emergency relief - it creates inconsistency"
Your Response:
"Emergency relief carve-outs are standard practice precisely because the alternative is impractical. If your confidential information is being disclosed in California, you'd want to be able to seek an immediate TRO in California - not wait to file in [distant venue] while the disclosure continues. This protects both parties and is consistent with most commercial agreements."
🔴 "We've never had anyone object to our venue clause"
Your Response:
"We appreciate that others may have accepted these terms, but we need to ensure we can practically enforce this agreement if necessary. Given the value of the information we'll be sharing, we need a forum where litigation is feasible. I'm sure you'd want the same assurance for your information. Can we find a middle ground that works for both of us?"
Email Templates
Proposing Non-Exclusive Jurisdiction
Use when the other party insists on exclusive jurisdiction in their courts
Hi [Name],
Thank you for the draft NDA. We're aligned on most terms, but the exclusive jurisdiction clause requires modification.
As drafted, Section [X] requires all disputes to be litigated exclusively in [Their Location]. Given the distance from our operations, this would create significant practical barriers to enforcing our rights.
We propose changing this to non-exclusive jurisdiction. This means:
- [Their Location] courts would definitely have jurisdiction (no change for you)
- Both parties retain the ability to bring claims in other courts with proper jurisdiction
- Emergency relief can be sought wherever needed to protect confidential information
This is a balanced approach for a mutual NDA. I've attached redlined language for your review.
Best,
[Your Name]
Proposing a Neutral Venue
Use when both parties want their home courts
Hi [Name],
I understand your preference for [Their State] courts, just as we'd prefer [Your State] courts. Since neither of us wants to be forced to litigate across the country, let me propose a compromise.
Delaware is commonly used as a neutral venue for commercial disputes between parties in different states. The Delaware Court of Chancery has specialized expertise in business matters and is respected by both coasts.
Alternatively, we could agree to New York (Southern District and Manhattan state courts), which is also widely accepted as neutral ground.
Either option gives both parties a fair forum without requiring either of us to litigate in the other's backyard. The emergency relief carve-out would still allow us to seek injunctions wherever needed.
Would either of these work for you?
Best,
[Your Name]
Accepting Distant Venue with Conditions
Use when you must accept their venue but want practical accommodations
Hi [Name],
After further discussion internally, we can accept [Their Location] as the venue for disputes, subject to the following conditions:
1. Non-exclusive jurisdiction - We agree [Their Location] courts have jurisdiction, but we're not precluded from other forums where appropriate.
2. Emergency relief anywhere - Either party may seek TROs, preliminary injunctions, or other emergency relief in any court where needed to protect confidential information.
3. Remote participation - For non-evidentiary hearings and depositions, parties may appear by video conference.
4. Prevailing party fees - If we must travel for litigation, we'd like fee-shifting so the prevailing party recovers reasonable costs.
I've attached revised language incorporating these points. Let me know if this works.
Best,
[Your Name]
Federal vs. State Court Considerations
When to Prefer Federal Court
- Perceived neutrality: Federal judges are appointed for life and may be less influenced by local concerns
- Uniform procedures: Federal Rules of Civil Procedure apply nationwide
- Complex commercial disputes: Federal judges often have more experience with sophisticated business issues
- Diversity jurisdiction: Automatically available if parties are from different states and amount in controversy exceeds $75,000
When to Prefer State Court
- Speed: Some state courts have faster dockets than federal courts
- Specialized courts: Delaware Chancery Court, New York Commercial Division have expertise
- Local presence: If you have operations in the state, local courts may understand your business
- Procedural advantages: Some state procedures may favor your position
Include Both Options
Best practice is to include both state and federal courts as options: "the state and federal courts located in [County, State]." This provides flexibility and avoids disputes about which court system applies.
International Venue Considerations
Cross-border NDAs require additional attention to jurisdiction and venue:
Key Issues
- Judgment Enforcement: U.S. judgments are not automatically enforceable abroad. Consider arbitration if the other party's assets are overseas.
- Service of Process: International service under the Hague Convention can take months. Include alternative service provisions.
- Forum Non Conveniens: U.S. courts may decline jurisdiction if a foreign court is more appropriate. Waiver language is important.
- Local Counsel Requirements: Some countries require local counsel for litigation. Factor this into your cost analysis.
Recommended Approach
For international agreements, consider:
- Arbitration (ICC, AAA, or LCIA) with a neutral seat
- Non-exclusive jurisdiction allowing action wherever assets are located
- Explicit waiver of sovereign immunity if dealing with state-owned entities
- Choice of law separate from venue (e.g., apply U.S. law in a neutral venue)
When to Compromise
| Situation | Acceptable Compromise | Red Line |
|---|---|---|
| They want their home courts | Non-exclusive jurisdiction in their courts | Exclusive jurisdiction with no emergency relief carve-out |
| Jury trial waiver requested | Waiver with fee-shifting provision | Waiver with each party bearing own costs |
| Federal court only | Federal or state courts in the same location | Federal court in a distant jurisdiction |
| Forum selection clause | Neutral third venue (Delaware, NY) | Their distant home courts exclusively |
| Waiver of objections | Waiver of inconvenient forum only | Waiver of all jurisdictional defenses |
Next Steps
- Review the clause language: Return to the main clause page for copy-paste ready versions
- Assess your leverage: Who needs this deal more? That affects what you can negotiate
- Calculate litigation costs: What would it actually cost to litigate in their proposed venue?
- Prepare alternatives: Have specific language ready for non-exclusive jurisdiction and neutral venues
- Consider the relationship: A fair venue clause signals good faith and a reasonable counterparty
Related Resources
Jurisdiction and Venue Clause Language - Copy-paste ready versions
Governing Law Clause - Often negotiated together with venue
Dispute Resolution Clause - Arbitration and mediation alternatives