A court case sample in West Germany:
In order to avoid the courtroom in West Germany, the defendant should seek one of two routes: either to prove that the enforcement of the trial would be unreasonable and unjust or that the clause is invalid for such reasons as fraud or over-reaching.
It is important to mention that in the light of the differences between the common law applied in the United States and the civil law applied in West Germany, all closes related to the forum or the place of trial are to be debated in court, even if they clearly tell which court is responsible for dealing with the disputes resulting from a the contract subject of the dispute.
Thus, the American defendant has to try and prove that the contract is either void or voidable or that the forum clause is inapplicable. The reasoning which he may resort to in these cases involve coercion, that is, proving that he was forced to sign the contract or accept that forum clause in particular. He may also argue that it was a mistake, that is, he was not aware of the presence of this clause, perhaps because that clause was written in German, a language which he did not understand. The defendant may also argue that the clause was part of a fraudulent behavior on the part of his opponent, as for example if the clause was written in minute letters that do not show clearly or that the clause was written in German while the contract in English.
In the second route for recourse, the defendant may argue that applying the clause would result in an unjust outcome for himself such that there will be inequality in favor of his German opponent if the trial were to take place in West Germany. The defendant may also show that holding the trial in West Germany will be very inconvenient and very impractical for himself. This could be proven through showing that evidences to support his point in court may not be possible to show or prove his statements. Since the German opponent does not have to come up with evidence apart from the contract, it is the American defendant who has to bring up evidences and prove that he has not committed wrong. To do this, his evidences will naturally have to be gathered from his business in America. To have these transferred from the United States to Germany will be impractical for many reasons and may even be impossible. On the other hand, the German opponent does not have to go through these hardships and many simply appoint a lawyer in the United States, a privilege which the American will not find practical due to the need to transfer evidences, a course that may be very expensive, very unjust and very time- and effort-consuming.
My point of view is that the defendant has to choose the second alternative, also known as reasonableness because choosing the first alternative may reflect the presence of ill-will or fraud, a fact which may not only be difficult to prove, but that may also lead to negative consequences on the dealings of the two parties. The second alternative, on the other hand, can lead to resolution of the dispute through court and without the presence of negative feelings or relations, while at the same time, allowing both parties to prove their points of view without having either part put at a disadvantage.
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