The recent decision of Bonanno v. VTB Holdings Inc., C.A. No. 10681-VCN (Del. Ch. Feb. 8, 2016) interprets Section 115 of the Delaware General Corporation Law (“DGCL”).
Section 115 of the DGCL provides as follows:
The certificate of incorporation or the bylaws may require, consistent with applicable jurisdictional requirements, that any or all internal corporate claims shall be brought solely and exclusively in any or all of the courts in this State, and no provision of the certificate of incorporation or the bylaws may prohibit bringing such claims in the courts of this State. “Internal corporate claims” means claims, including claims in the right of the corporation, (i) that are based upon a violation of a duty by a current or former director or officer or stockholder in such capacity, or (ii) as to which this title confers jurisdiction upon the Court of Chancery.
The case differentiates between forum selection clauses contained in a corporation’s bylaws or COI, and those contained in external documents such as a stockholders agreement. The Court found that a forum selection clause contained in a stockholders agreement is not subject to Section 115 and thus parties may confer exclusive jurisdiction in such external documents to a non-Delaware forum regarding disputes concerning the internal affairs of a Delaware corporation without violating the public policy of the State of Delaware.
Carl D. Neff is a partner with the law firm of Fox Rothschild LLP. Carl is admitted in the State of Delaware and regularly practices before the Delaware Court of Chancery, with an emphasis on shareholder disputes. You can reach Carl at (302) 622-4272 or at firstname.lastname@example.org.