Don't Try To Enforce Forum Selection Clauses At The ITC

A recent decision by the International Trade Commission ("ITC") in Investigation No. 337-TA-1091, suggests that the ITC may not enforce forum selection clauses that typically bind private parties to raise disputes in a specific jurisdiction or forum. Certain Color Intraoral Scanners and Related Hardware and Software, Inv. No. 337-TA-1091, Order No. 23 (May 18, 2018).

This investigation involved Complainant Align Technology, Inc. ("Align") and Respondents, 3Shape A/S, 3Shape Inc., and 3Shape Trios A/S. Prior to institution of the Investigation, Complainant and Respondent, 3Shape Trios A/S entered into an agreement which included a forum selection clause, in which the parties agreed to "irrevocably submit to the exclusive jurisdiction of the courts in Denmark to settle any dispute arising out of or in connection with this Agreement." Id. at 1. After institution of the Investigation, and while the Agreement was still in effect, Respondent sought to enforce the