Adv. Mariola Hawel-Tocker | Hawel-Tocker & Co. Law Offices

In international transactions, the jurisdiction clause is often treated as a technicality: a matter of convenience, geographic proximity, or the language of proceedings. Yet, when a dispute actually arises, the choice of forum determines not merely where the case will be heard, but whether its outcome can be enforced at all. A judgment rendered in one country is not automatically enforceable in another. Without careful planning, a legal victory may remain on paper only.

What Is “Forum Selection”?

In legal terms, “forum” refers to the court with jurisdiction to adjudicate a dispute. In certain matters, procedural rules establish exclusive local jurisdiction. For example, disputes concerning real property or estate matters are often subject to jurisdiction based on the location of the asset or the deceased’s last residence. In such cases, the parties cannot choose.

However, in commercial agreements where no statutory exclusive jurisdiction applies, the parties are free to designate which court shall have jurisdiction over disputes between them, whether exclusively or alternatively.

Not a Matter of Convenience: A Matter of Enforcement

Many assume that forum selection is a question of convenience: geographic proximity, language, or accessibility. While these are legitimate considerations, they are secondary. The decisive question is: Can the judgment be enforced where the debtor’s assets are located?

A judgment rendered in Israel is not automatically enforceable in Poland, and vice versa. To enforce a foreign judgment, a separate recognition and enforcement proceeding is required in the country where the assets are situated. This is an additional legal process involving time and cost.

A Practical Example

An Israeli company supplied goods to a Polish company. When drafting the agreement, the Israeli company insisted on exclusive jurisdiction for the Tel Aviv court. From their perspective, this appeared advantageous: proceedings in Hebrew, in a familiar court, without the need for international travel.

The Polish company failed to pay. The Israeli company obtained a favorable judgment in Tel Aviv, but the Polish company refused to comply. Because an Israeli judgment is not directly enforceable in Poland, the Israeli company was forced to file for recognition and enforcement in a Polish court, a process fraught with additional costs and delays.

Had the agreement included alternative jurisdiction, allowing proceedings in either Israel or Poland at the claimant’s discretion, the Israeli company could have sued directly in Poland and obtained an immediately enforceable judgment against the debtor’s local assets.

Exclusive vs. Alternative Jurisdiction

• Exclusive Jurisdiction: Only one specific court is authorized to hear the case. This provides certainty regarding the venue but carries the risk that the resulting judgment may be difficult to enforce elsewhere.

• Alternative Jurisdiction: Multiple courts are authorized, typically at the claimant’s choice. This provides strategic flexibility to sue where enforcement is most likely to succeed.

Conclusion

Forum selection in international agreements is a matter of enforceability, not just convenience. Professional legal advice during the drafting stage prevents hollow victories and ensures that a judgment can actually be executed.

* The above does not constitute legal advice and is not a substitute for individual legal consultation. Each case is examined on its own merits.