One of the options available to contracting US and non-US parties is to select both a non-US forum in which to resolve any future disputes, often through arbitration, and the application of foreign substantive law. The choice might be driven by a desire to avoid the perceived expenses of US litigation, to find a neutral forum and law, or to avoid possible exposure under federal and state statutes with which the foreign party, in particular, is unfamiliar or uncomfortable. But questions have lingered over the extent to which US courts will honour such choices by dismissing, or at least staying, actions later brought by either party in the US under US laws - particularly under public laws such as antitrust, securities and Racketeer Influenced and Corrupt Organizations Act (Rico) statutes - designed to compensate plaintiffs and vindicate certain public interests.
The answer, as recently illustrated by JLM Ind, Inc v...