Updated: Jun 30, 2021
This is the first in an intermittent series of Why This Sifter Matters blog posts explaining why users would benefit from having a given Sifter in their array of Sifters.
Our Sifters—that’s what we call our algorithms looking for specific contracts issues—either reflect a sensible take on established reality or they’re ahead of the game. Jurisdiction: Consent to Jurisdiction is the latter kind of Sifter.
I wrote about consent-to-jurisdiction provisions in this 2019 blog post. I reached the following conclusion: “Use only jurisdiction provisions; don’t use consent-to-jurisdiction provisions.” As far as I’m aware, I’m the only person to say this, even though the evidence is straightforward and compelling.
I decided that the topic was important enough for us to build a Sifter to look for consent-to-jurisdiction provisions. My LegalSifter colleagues are generally willing to let me follow my instincts, so we built Jurisdiction: Consent to Jurisdiction. Recently I did a Ken’s Hot Takes video on jurisdiction provisions (here) that mentions consent-to-jurisdiction provisions. And Jurisdiction: Consent to Jurisdiction is one of the sifters covered in my recent blog post Meet the Jurisdiction Sifters (here).
Given the foundation we’ve laid for Jurisdiction: Consent to Jurisdiction, what came next was so fitting, it’s as if I had scripted it. In a 22 April 2021 opinion that I discuss in this blog post published earlier this week, the Delaware Chancery Court considered a dispute caused by a conflict between a consent-to-jurisdiction provision and a provision establishing jurisdiction. The former said that jurisdiction was exclusive; the latter suggested that jurisdiction was permissive. Which should prevail?
As always, the court’s answer is of limited interest—that the confusion existed at all is what matters most to me. I didn’t anticipate this dispute in my 2019 blog post, but it comes as no surprise: using unnecessary words is the more obvious drawback of redundancy, but it always has the potential to also create unexpected confusion. That it did so in the Delaware dispute makes the case for eliminating consent-to-jurisdiction provisions all the more compelling.
Riders of the copy-and-paste train are likely to be oblivious to the risks of consent-to-jurisdiction provisions. Readers of my blog posts might be suitably sensitized, but they’re a nerdy minority. For others, there’s LegalSifter and the Sifter Jurisdiction: Consent to Jurisdiction.
I’m confident that of the swarm of companies hoping to capture a share of the market for AI-assisted contract review, only LegalSifter is giving users access to such cutting-edge, prescient expertise.