Q. I am considering signing a contract directly with an overseas publisher, but it refuses to change the clause that says any lawsuits —whether brought by it or me— must be conducted exclusively in its country. If it sues me, even spuriously, there is no way I could travel there to defend myself. Any suggestions?
A. This is a provision that publishers frequently refuse to budge on, but here are several alternatives you can try.
1. Provide that any suit by you against it has to be in the publisher’s country but any suit by it against you has to be where you live. This should discourage spurious lawsuits while not preventing a local lawyer (in whichever country) from being hired to pursue valid claims.
2. Choose a third location that is convenient for both of you or one that is mutually inconvenient. Either would put you and the publisher on equal footing, which is what you are presumably trying to accomplish.
3. Keep the clause but delete “exclusively.” It gives the publisher a significant part of what it wants but, from your viewpoint, doesn’t make it exclusive so any lawsuit can still take place in your home court (subject to getting jurisdiction over the publisher by properly serving it with a complaint).
4. Omit the clause altogether, which leaves the dispute for another day (which may never come). The publisher may consider this a satisfactory way to resolve the impasse. Although omitting an important clause is not something I typically recommend, having it would be worse for you since you’re dealing with an overseas situation.
Each of these approaches (or at least the first three) deals with the issue head-on. What may also be helpful — whether or not one of those alternatives is accepted — is what computer-savvy people call a “workaround,” viz., getting to the place you want but by different means. Consider the following:
Accede to the publisher’s position but require that before a lawsuit can be brought by either side, both must mediate the dispute or attempt to do so (diligently and in good faith) for a specified period (e.g., 90 days). Mediation is a non-binding procedure in which a skilled third party seeks to work out a compromise acceptable to both sides. Giving both sides the opportunity to air complaints and suggest solutions can help to dampen emotions and overcome the kind of misunderstandings that frequently accompany seemingly irreconcilable disputes. It can be done long distance through 3-way phone calls or by the mediator speaking (or corresponding) separately with each party and then proposing solutions s/he thinks might be satisfactory to both.
This alone may resolve the problem without your being required to travel abroad and without the publisher retreating from its position on location of litigation.
If you do decide to sign the publisher’s clause (with or without the “exclusive” language) and are eventually sued, be aware that in some jurisdictions contractual provisions requiring suits to be brought in a foreign court may not be enforced unless the clause also says that you 1) accept or consent to that court’s jurisdiction, and 2) waive rights relating to an “inconvenient forum” (often expressed as forum non conveniens). Because of this, if language indicating either of those things is in the contract you are asked to sign, delete them since it is possible the publisher will be satisfied with the clause without either.
By the way, you say that the publisher refuses to change its position. Is that truly so? Have you walked away from the deal and the publisher not called you back? In real hardball negotiating, only if you are truly willing to walk away do you have a chance of succeeding when there’s an impasse on a key issue and all attempts at compromise have failed. The downside of that, of course, is that you have to be prepared to abandon the deal.
Whether this particular clause should be that issue is a separate question. Many people would not consider it one to kill a deal for. However, if your publisher refuses to accept any of the above alternatives or the workaround option, you may want to consider how reasonable your publisher is in general. And if the answer is “not very”—which would be a valid conclusion since the alternatives are reasonable and certainly the workaround causes no harm other than to delay hauling you into court —then you may not want that company or person to be your publisher in any event.
(Originally published in the Winter 2010 issue of the Authors Guild Bulletin. © Mark L. Levine)
Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.