These clauses designated the courts of North Carolina as the forum for the resolution of all disputes; the defendants did not invoke these clauses until after they had submitted a defence on the merits, thereby giving rise to an argument regarding their attornment to the jurisdiction.
Further, the Court of Appeal considered in some detail the issue of attornment in the presence of a forum selection clause.
In dismissing the appeal, the Supreme Court of Canada chose to overlook the challenging aspects of the case that had been addressed by the Court of Appeal, preferring to reaffirm its position favouring party autonomy in very general terms without providing any true guidance for future cases on the exact contours of the strong cause test or the practical conditions for establishing attornment. (7) As a result, parties considering litigation in Canada might wonder what lessons they may draw regarding the law and practice governing forum selection clauses in Canada after Momentous.
The article then turns to a consideration of attornment in the face of a forum selection clause.
This point will be further elaborated upon below when we discuss attornment and recent appellate jurisprudence, including the latest Supreme Court of Canada decision in Momentous.
THE EFFECT OF ATTORNMENT OR THE TIMING OF THE REQUEST TO STAY THE PROCEEDINGS
Attornment or submission has been called the "least controversial basis for jurisdiction", (93) and the courts clearly recognize it as sufficient to establish jurisdiction.
Where this occurs, the Sublandlord will likely have entered into a subordination, non-disturbance and attornment
agreement ("SNDA") with the fee lender to ensure that a foreclosure of the fee mortgage does not extinguish the ground lease.
This question is one of the main reasons why "non-disturbance and attornment
" agreements have become an increasingly common component of commercial leases in the last few years, says John Loehr, a partner in the New York City law firm of Wien.