LawyerFilter: USA-based agency with client in Canada - contract question
April 27, 2017 9:14 PM Subscribe
Agency is in USA, Client is in Canada. Agency has a signed contract for digital services with client, and a dispute has arisen. Contract states "It is a binding legal document under State of Wisconsin (USA) law." If Agency has to enforce provisions of the contract against Client, for example, payment schedule, how would one proceed? Would Agency have to hire a Canadian attorney? In other words, what are the cross-border considerations Agency has to keep in mind if in order to hold Client accountable for terms of the contract?
YANML, of course.
YANML, of course.
Best answer: Agency ought first to give whoever drafted the contract a good scolding for failing to use the utterly bog-standard language for its choice of law provision and for failing to include a choice of forum provision at all. By failing to be aware of issues the average first-year law student knows about after a semester of Civ Pro, the drafter has left Agency open to much uncertainty. Seriously. I would probably not use the drafter ever again.
A Canadian attorney should not be required unless it turns out that the appropriate American court in which an American attorney would bring suit lacks jurisdiction (a possibility; merely entering into a contract with a state resident is not enough to give rise to jurisdiction, but the bar is somewhat low). If Client doesn't come into the state, the American attorney may have to follow some fairly arcane procedures to serve Client in Canada, but that doesn't actually require Canadian counsel. Basically, an American attorney with experience in international contract disputes is what Agency would need, up to the point that the chosen American court decides it doesn't have jurisdiction.
posted by praemunire at 10:00 PM on April 27, 2017 [1 favorite]
A Canadian attorney should not be required unless it turns out that the appropriate American court in which an American attorney would bring suit lacks jurisdiction (a possibility; merely entering into a contract with a state resident is not enough to give rise to jurisdiction, but the bar is somewhat low). If Client doesn't come into the state, the American attorney may have to follow some fairly arcane procedures to serve Client in Canada, but that doesn't actually require Canadian counsel. Basically, an American attorney with experience in international contract disputes is what Agency would need, up to the point that the chosen American court decides it doesn't have jurisdiction.
posted by praemunire at 10:00 PM on April 27, 2017 [1 favorite]
No one can answer this question without, at the very least, reading your whole contract and knowing how much (if any) business Client does in the state where Agency is based.
If you are trying to avoid paying a US lawyer for an hour's worth of work to discuss this with you, then you might want to reconsider whether you even have any interest in paying any lawyer for all the time it would take to pursue a lawsuit for you.
posted by sheldman at 6:01 AM on April 28, 2017
If you are trying to avoid paying a US lawyer for an hour's worth of work to discuss this with you, then you might want to reconsider whether you even have any interest in paying any lawyer for all the time it would take to pursue a lawsuit for you.
posted by sheldman at 6:01 AM on April 28, 2017
Best answer: Just to expand a little bit on the answers above: the "choice of forum provision" that praemunire referenced is what you should be looking for. That is separate from "choice of law" (which is the parties' agreement to follow Wisconsin law.) It might well be in the same paragraph as the language you cited. Where parties are located in different places, and there may be a fight about where you can sue, it is pretty standard to agree right in the contract. Choice of forum might be the courts where you are, or the courts where they are, or in an arbitration in one of those places.
As praemunire and sheldman covered pretty well, if you want to sue and there's no forum language, then there will be some analysis required to understand where you can do that (amount in controversy, the Canadian firm's "contacts" with the state that you are in, where the contract was performed and breached, etc.) At the very least, you'd probably need to get some help to properly serve them with the legal papers in Canada.
posted by AgentRocket at 6:44 AM on April 28, 2017
As praemunire and sheldman covered pretty well, if you want to sue and there's no forum language, then there will be some analysis required to understand where you can do that (amount in controversy, the Canadian firm's "contacts" with the state that you are in, where the contract was performed and breached, etc.) At the very least, you'd probably need to get some help to properly serve them with the legal papers in Canada.
posted by AgentRocket at 6:44 AM on April 28, 2017
I have no idea why any lawyer would touch this on the Internet with a 45 foot pole, let alone give you legal advice without having issued an engagement letter, read the entire contract, and had a careful and thorough discussion with you to discover all relevant facts of the case, rather than just the ones that you think are important.
Contracts are complicated enough; cross-border contracts are even more complicated, and cross-border international contract enforcement is one of the classic IT'S A TRAP scenarios for generalist lawyers.
posted by joyceanmachine at 6:45 AM on April 28, 2017
Contracts are complicated enough; cross-border contracts are even more complicated, and cross-border international contract enforcement is one of the classic IT'S A TRAP scenarios for generalist lawyers.
posted by joyceanmachine at 6:45 AM on April 28, 2017
Joyce, they're telling the OP about general principles, they're not giving legal advice. None of the above posts tell the OP his rights or interpret the contract. They're telling the OP to hire a real-life lawyer.
posted by JimN2TAW at 8:13 AM on April 28, 2017 [2 favorites]
posted by JimN2TAW at 8:13 AM on April 28, 2017 [2 favorites]
Response by poster: Thank you everyone. JimN2 is correct, I wasn't looking for specific legal advice on this, just an idea of the general principles surrounding a cross-border contract.
posted by falcon42 at 8:22 AM on April 28, 2017
posted by falcon42 at 8:22 AM on April 28, 2017
This thread is closed to new comments.
posted by bitdamaged at 9:54 PM on April 27, 2017 [1 favorite]