     Case: 15-10757   Document: 00513610165     Page: 1   Date Filed: 07/26/2016




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                 No. 15-10757                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
JONATHAN BARNETT,                                                   July 26, 2016
                                                                    Lyle W. Cayce
             Plaintiff - Appellant                                       Clerk

v.

DYNCORP INTERNATIONAL, L.L.C.,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Northern District of Texas


Before JONES, WIENER, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Plaintiff Jonathan Barnett alleges that his former employer, DynCorp
International LLC, failed to give him all of the pay and benefits he was owed
for work he did in Kuwait. To resolve this appeal, we must decide whether the
district court properly dismissed Barnett’s putative class action complaint on
the basis of a forum-selection clause in his employment contract. That decision
presents a series of choice-of-law issues. Ultimately, we affirm.
                                       I.
      DynCorp, a private contractor that provides logistics support services to
the U.S. Army, is an American company with its principal place of business in
Texas.   Barnett is a resident of the state of Georgia.     In February 2011,
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                                No. 15-10757
DynCorp extended Barnett an offer to work for DynCorp in Kuwait. Barnett
traveled to Texas and signed a one-year “Foreign Service Employment
Agreement” drafted by DynCorp in Texas.         He signed a similar one-year
contract in February 2012 and extensions of the second contract in March
2013. We refer collectively to these contracts, which are essentially identical
for our purposes, as the “Agreement.”
      The   Agreement    designated     Barnett’s   “geographical   location   of
employment” as Kuwait. Barnett’s base wages were set in American dollars,
but his overtime and working holiday compensation were to “be paid at
premium rates in accordance with Kuwait Labour Law, No. 6 of 2010.” The
Agreement also incorporated the Kuwait Labour Law to determine Barnett’s
work schedule, holidays, medical leave benefits, circumstances under which he
could be terminated, and compensation due upon termination. Other benefits
such as paid leave were set with reference to U.S. Army contracting policies.
Importantly, the Agreement stated: “This Contract shall be governed by and
interpreted exclusively under the laws of Kuwait and all disputes between the
Parties shall be resolved exclusively in Kuwait.”
      Barnett completed a paid one-week training program in Texas, then flew
to Kuwait in early March 2011. In his two-plus years working in Kuwait,
Barnett alleges, he worked seventy-two hours per week, and worked on at least
some “off days” and public holidays. He was paid in U.S. dollars, and only U.S.
taxes were withheld from his wages.
      In a March 2013 letter, DynCorp informed Barnett that his employment
would soon be terminated because DynCorp would no longer be providing
services at Barnett’s location. That letter promised that Barnett would receive
an end-of-service indemnity, accrued and unused leave credit, and other
benefits. And it stated that “[a]ny balance of wages due [would] be distributed


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                                      No. 15-10757
on the next scheduled pay date after [Barnett’s] departure” from Kuwait.
Barnett left Kuwait, concluding his work for DynCorp, on June 10, 2013.
       Barnett filed this action on March 27, 2015, in a federal court in Texas.
He alleges that he never received all of the wages and benefits DynCorp owes
him, and that DynCorp breached the Agreement by failing to provide him—“in
accordance with the [Kuwait] Labour Law”—overtime pay, paid leave, end-of-
service payment, and premature contract termination damages.                       He also
contends that DynCorp failed to pay him hardship compensation and meal per
diems, and did not provide all of the free housing and transportation required
by the Agreement.
       DynCorp moved to dismiss on the basis of forum non conveniens, arguing
that the Agreement’s forum-selection clause mandates that the action be
litigated in Kuwait. Barnett opposed the motion, responding that the forum-
selection clause is void under Texas law and unenforceable under federal law.
Specifically, Barnett argued that under Texas Civil Practice & Remedies Code
section 16.070, 1 the forum-selection clause is void because it directs litigation
to a forum in which the limitations period for breach of an employment contract
is less than two years. The district court granted the motion, concluding that
the forum-selection clause is valid, enforceable, and requires dismissal under
Atlantic Marine Construction Co. v. United States District Court, 134 S. Ct. 568
(2013). Barnett timely appealed.
                                             II.
       The Supreme Court recently clarified that “the appropriate way to
enforce a forum-selection clause pointing to a state or foreign forum is through


       1  See Tex. Civil Practice & Rem. Code § 16.070(a) (“Except as provided by
Subsection (b), a person may not enter a stipulation, contract, or agreement that purports to
limit the time in which to bring suit on the stipulation, contract, or agreement to a period
shorter than two years. A stipulation, contract, or agreement that establishes a limitations
period that is shorter than two years is void in this state.”).
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the doctrine of forum non conveniens.” Atl. Marine, 134 S. Ct. at 580. Usually,
a court applying that doctrine must determine whether there is an adequate
alternative forum and, if so, decide which forum is best-suited to the litigation
by considering a variety of private- and public-interest factors and giving
deference to the plaintiff’s choice of forum. DTEX, LLC v. BBVA Bancomer,
S.A., 508 F.3d 785, 794–95 (5th Cir. 2007). The presence of a valid forum-
selection clause simplifies this analysis in two ways. “First, the plaintiff’s
choice of forum merits no weight” because, by contracting for a specific forum,
“the plaintiff has effectively exercised its ‘venue privilege’ before a dispute
arises.” Atl. Marine, 134 S. Ct. at 581–82. Second, the private-interest factors
“weigh entirely in favor of the preselected forum,” so that the “district court
may consider arguments about public-interest factors only.” Id. at 582. Hence,
a valid forum-selection clause controls the forum non conveniens inquiry “[i]n
all but the most unusual cases.” Id. at 583. This harmonizes with the Court’s
guidance that contractually selected forums often “figure[] centrally in the
parties’ negotiations” and become part of those parties’ “settled expectations”—
so if a plaintiff disregards such a contractual commitment, “dismissal . . .
work[s] no injustice.” Id. at 583 & n.8.
      When a district court decides a forum non conveniens motion based on a
forum-selection clause, we review de novo the “interpretation” and
“assessment of that clause’s enforceability,” then “review for abuse of
discretion the court’s balancing of the private- and public-interest factors.”
Weber v. PACT XPP Techs., AG, 811 F.3d 758, 768 (5th Cir. 2016).
                                      III.
      Article 144 of the Kuwait Labour Law provides a one-year statute of
repose, running from the termination of the relevant employment relationship,
which the parties agree would apply if Barnett were to bring suit in Kuwait.
See Lee v. ITT Corp., 534 F. App’x 626, 626 (9th Cir. 2013) (unpublished)
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(referencing the statute of repose). Barnett contends that as a result, the
Agreement’s Kuwaiti choice-of-law and forum-selection clauses effectively
create a limitations period of less than two years. Those clauses, he submits,
are therefore nullities because Texas Civil Practice & Remedies Code section
16.070 makes “void in [Texas]” any “stipulation, contract, or agreement that
establishes a limitations period that is shorter than two years.” DynCorp
disagrees, arguing that section 16.070 is irrelevant to this case. We must
decide which jurisdiction’s law governs, and to what effect.
                                       A.
      Atlantic Marine tells us that a “valid” forum-selection clause pointing to
a foreign tribunal requires forum non conveniens dismissal absent unusual
circumstances. 134 S. Ct. at 581–83 & n.8. But in Atlantic Marine, “there was
no dispute that the forum-selection clause was valid.” Id. at 576. And the
Court noted, without elaboration, that its analysis “presuppose[d] a
contractually valid forum-selection clause.” Id. at 581 n.5. Atlantic Marine
thus did not answer under what law forum-selection clauses should be deemed
invalid, see In re Union Elec. Co., 787 F.3d 903, 906–07 (8th Cir. 2015)—an
issue that has long divided courts, see, e.g., Lambert v. Kysar, 983 F.2d 1110,
1116 & n.10 (1st Cir. 1993) (noting a circuit split over whether to apply federal
or state law).   Consequently, courts and commentators have continued to
express uncertainty about “whether a federal court in a diversity case should
look to federal law, state law or both when deciding whether a forum selection
clause is valid.” Rolfe v. Network Funding LP, No. 14-CV-9-BBC, 2014 WL
2006756, at *1 (W.D. Wis. May 16, 2014); see Linda S. Mullenix, Gaming the
System: Protecting Consumers from Unconscionable Contractual Forum-
Selection and Arbitration Clauses, 66 HASTINGS L.J. 719, 731 (2015) (noting
that Atlantic Marine left open the question of “[w]hat body of law applies to


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                                  No. 15-10757
evaluate the validity and enforceability of a forum-selection clause,” which is
“further complicated if the contract also contains a choice-of-law provision”).
      Neither the Supreme Court nor this court has said what source of law
governs the “validity” of a forum-selection clause. But even in diversity cases,
federal law governs the “enforceability” of forum-selection clauses in this
circuit. Haynsworth v. The Corp., 121 F.3d 956, 962 (5th Cir. 1997); see Weber,
811 F.3d at 770. This federal law, derived from a pair of seminal admiralty
cases, requires a party attacking a forum-selection clause to overcome a
presumption of enforceability by showing that the clause is “‘unreasonable’
under the circumstances” because
      (1) the incorporation of the forum selection clause into the
      agreement was the product of fraud or overreaching; (2) the party
      seeking to escape enforcement “will for all practical purposes be
      deprived of his day in court” because of the grave inconvenience or
      unfairness of the selected forum; (3) the fundamental unfairness
      of the chosen law will deprive the plaintiff of a remedy; or (4)
      enforcement of the forum selection clause would contravene a
      strong public policy of the forum state.
Haynsworth, 121 F.3d at 963 (citing Carnival Cruise Lines, Inc. v. Shute, 499
U.S. 585, 595 (1991), and M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1,
12–13 (1972)). When the “interpretation” of a forum-selection clause is at issue
in a diversity case, however, we apply the forum state’s choice-of-law rules to
determine what substantive law governs. Weber, 811 F.3d at 770–71.
      Barnett argues that the “validity” of a forum-selection clause is a matter
of substantive contract law that is separate from and must precede any federal-
law analysis of “enforceability” or application of Atlantic Marine. DynCorp
seems to counter that “validity” in this context is just part of the federal law of
enforceability, which heavily favors forum-selection clauses.        This dispute
potentially matters because, in Barnett’s view, applicable state law voids the
forum-selection clause.

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                                        No. 15-10757
       Support can be marshalled for each choice-of-law position. Barnett’s
comports with the general principle that outside narrow areas of federal
interest, “[t]here is no federal common law of contracts.” Ford v. Hamilton
Invs., Inc., 29 F.3d 255, 258 (6th Cir. 1994). It also mirrors our approach to
arbitration clauses—which are, “in effect, a specialized kind of forum-selection
clause.” Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974). Despite the
strong federal policy in favor of arbitration, “[g]iven the ‘fundamental principle
that arbitration is a matter of contract,’ to determine whether an agreement to
arbitrate is valid, courts apply ‘ordinary state-law principles that govern the
formation of contracts.’” Carey v. 24 Hour Fitness, USA, Inc., 669 F.3d 202,
205 (5th Cir. 2012) (citation omitted); see also Brown v. Fed. Capital Corp., 991
F. Supp. 2d 857, 860–62 (S.D. Tex. 2014) (citing an arbitration case for the
proposition that courts should apply state-law contract formation principles to
determine whether a “contractually valid forum-selection clause” exists).
       There are problems with Barnett’s position, though. First, we do not
appear to have drawn his distinction between validity and enforceability,
instead seeming to treat those words as synonyms in the forum-selection clause
context. Even in diversity cases, we have often framed our analysis of such
clauses by quoting Bremen’s instruction that forum-selection clauses “are
prima facie valid and should be enforced unless enforcement is shown by the
resisting party to be ‘unreasonable’ under the circumstances.” Int’l Software
Sys., Inc. v. Amplicon, Inc., 77 F.3d 112, 114 (5th Cir. 1996) (emphasis added). 2



       2  See also Weber, 811 F.3d at 773–74 (stating that forum-selection clauses are to be
treated as “presumptively valid”); Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 301 (5th
Cir. 1998) (referencing a “presumption of [a] forum-selection clause’s validity”). In fact, a law
review note that argues for precisely Barnett’s distinction between validity and enforceability
criticizes our court for “uncritically assum[ing] that since the enforcement of forum-selection
clauses is sometimes governed by federal law, the[ir] validity must also be a question of
federal law.” Matthew J. Sorensen, Note, Enforcement of Forum-Selection Clauses in Federal
Court After Atlantic Marine, 82 FORDHAM L. REV. 2521, 2546 (2014) (footnote omitted). We
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Too, while presupposing a “valid” forum-selection clause, the Court in Atlantic
Marine did not mention the word “enforceability.”
       Barnett’s position is also in tension with Stewart Organization, Inc. v.
Ricoh Corp., 487 U.S. 22 (1988). There, the defendant moved to transfer or
dismiss a contract dispute on the basis of a forum-selection clause. The federal
district court denied that motion, reasoning that Alabama law controlled and
disfavored forum-selection clauses. Id. at 24. Indeed, the Alabama Supreme
Court at that time held that “contractual agreements by which it is sought to
limit particular causes of action which may arise in the future to a specified
place[] are . . . invalid.” Redwing Carriers, Inc. v. Foster, 382 So. 2d 554, 556
(Ala. 1980), overruled by Prof’l Ins. Corp. v. Sutherland, 700 So. 2d 347 (Ala.
1997). Yet the U.S. Supreme Court reversed, holding that, if the forum state’s
law rejects forum-selection clauses, a district court should consider that in its
28 U.S.C. § 1404(a) balancing of factors for and against transfer, rather than
afford the forum-selection clause “no consideration (as [state] law might have
it).” Stewart, 487 U.S. at 30–31.
       Stewart arguably could be distinguished because it relied on Congress’s
enactment of § 1404(a), which governs transfer among federal district courts—
whereas here, DynCorp is attempting to enforce a forum-selection clause
pointing to a different country through forum non conveniens. But one sister
circuit, recognizing that distinction, still opined in dicta that Stewart
“supported” the “[p]robably . . . correct” position that federal law governs the
“validity” of a forum-selection clause outside the transfer context. Nw. Nat’l
Ins. Co. v. Donovan, 916 F.2d 372, 374 (7th Cir. 1990). And Atlantic Marine


also note that the Supreme Court of Texas has referred to Bremen and its progeny as
addressing “the validity of a forum-selection clause,” In re AIU Ins. Co., 148 S.W.3d 109, 111
(Tex. 2004), and that post-Atlantic Marine, one sister circuit has described Bremen as giving
the test for “whether a forum selection clause is invalid,” Martinez v. Bloomberg LP, 740 F.3d
211, 229 (2d Cir. 2014) (federal question case).
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further tied § 1404(a) to forum non conveniens, reasoning that the former is
“merely a codification of” the latter “for the subset of cases in which a
transferee forum is within the federal court system.” 134 S. Ct. at 580. 3 If
Stewart does control—and, thus, even state law squarely holding forum-
selection clauses “invalid” does not suffice to defeat such clauses in the forum
non conveniens context—Barnett’s more indirect reliance on Texas’s
prohibition of short contractual limitations periods seems doubly misplaced.
       On the other hand, though many courts have done so, 4 treating federal
law as governing the validity of forum-selection clauses in diversity cases is
not unproblematic either. Bremen and Carnival Cruise Lines were admiralty
cases, and federal common law developed in that context is “not freely
transferable” to diversity cases. Stewart, 487 U.S. at 28 (citing Tex. Indus.,
Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641–42 (1981)).                  Further,
DynCorp provides no satisfying theoretical explanation for excepting forum-
selection clauses from the general rule that state law governs contractual
“validity,” e.g. Lockette v. Greyhound Lines, Inc., 817 F.2d 1182, 1185 (5th Cir.
1987) (per curiam), or distinguishing them from arbitration clauses, whose
validity is determined by state law, Sharpe v. AmeriPlan Corp., 769 F.3d 909,
914 (5th Cir. 2014).
       We need not—and therefore do not—resolve this issue today.                       As
explained below, under either federal law or Texas’s choice-of-law rules,
Barnett can prevail only if enforcing the parties’ choice of Kuwaiti law and a



       3 See also Robin Effron, Atlantic Marine and the Future of Forum Non Conveniens, 66
HASTINGS L.J. 693, 702, 713–15 (2015) (arguing that Atlantic Marine “collapsed the
distinction between” the two analyses, at least in cases involving forum-selection clauses).
       4 See Black Hills Truck & Trailer, Inc. v. MAC Trailer Mfg., Inc., No. CIV. 13-4113-

KES, 2014 WL 5782452, at *4 & n.3 (D.S.D. Nov. 6, 2014) (“Following Atlantic Marine . . . .
[t]he majority of courts have applied Bremen and its progeny to determine whether to give
controlling weight to a forum-selection clause and they have not distinguished between
validity and enforceability of the clause.”) (collecting cases).
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                                 No. 15-10757
Kuwaiti forum would contravene a “strong” or “fundamental” public policy of
Texas. We conclude that it would not.
                                       B.
      If federal law alone controls the validity and enforceability of this forum-
selection clause, Barnett must show that the clause is unreasonable because
(1) the clause was incorporated into the Agreement by fraud or overreaching,
(2) the selected forum is gravely unfair or inconvenient, (3) the chosen law is
so fundamentally unfair as to deprive him of a remedy, or (4) enforcement of
the forum-selection clause would contravene a strong public policy of the forum
state. Haynsworth, 121 F.3d at 963. Barnett does not argue any of the first
three prongs.   That leaves the question whether the clause’s enforcement
would contravene a strong public policy of Texas.
      If, instead, the issue of a forum-selection clause’s “validity” is separate
from its “enforceability” and not determined by federal law in diversity cases,
it seems that the law applicable to that determination would be the same law
applicable to forum-selection clause interpretation—that is, the law selected
by the forum state’s choice-of-law rules.     See Weber, 811 F.3d at 770–71
(stressing “the core obligation of a federal court, sitting in diversity, to
ascertain which body of substantive law to apply by implementing the choice-
of-law rules of its home jurisdiction”). “Simplicity argues for determining the
validity and meaning of a forum selection clause,” at least when “interests
other than those of the parties will not be significantly affected by the choice
of which law is to control, by reference to the law of the jurisdiction whose law
governs the rest of the contract in which the clause appears.” Abbot Labs. v.
Takeda Pharm. Co., 476 F.3d 421, 423 (7th Cir. 2007). And the Restatement
(Second) of Conflict of Laws, which Texas courts generally look to “[i]n deciding
which state’s law should govern the construction of contractual rights,” Maxus
Expl. Co. v. Moran Bros., Inc., 817 S.W.2d 50, 53 (Tex. 1991), provides that
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                                  No. 15-10757
“[t]he validity of a contract, in respects other than capacity and formalities, is
determined by the law selected by” the Restatement’s general choice-of-law
principles, RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 200 (1971). Thus,
if we were to look to nonfederal law to determine the validity of this forum-
selection clause, we would not automatically apply Texas’s substantive law;
rather, we would apply the state’s choice-of-law rules. See Weber, 811 F.3d at
770. Under those rules, Texas law would control only if the Agreement’s
choice-of-law clause—which “exclusively” selects Kuwaiti law to govern the
Agreement and disputes between the parties—is itself unenforceable.            Cf.
Nexen Inc. v. Gulf Interstate Eng’g Co., 224 S.W.3d 412, 417 (Tex. App. 2006)
(“[I]f the choice-of-law provision is enforceable, it requires the application of
Alberta’s statute of repose.”).
      “The Supreme Court of Texas has recognized that contractual choice of
law provisions should generally be enforced, but has also stated that ‘the
parties’ freedom to choose what jurisdiction’s law will apply . . . [is not]
unlimited.’” Int’l Interests, L.P. v. Hardy, 448 F.3d 303, 306–07 (5th Cir. 2006)
(alteration in original) (quoting DeSantis v. Wackenhut Corp., 793 S.W.2d 670,
677 (Tex. 1990)). That freedom is limited by Texas’s adoption of section 187 of
the Restatement, which provides:
      (1) The law of the state chosen by the parties to govern their
      contractual rights and duties will be applied if the particular issue
      is one which the parties could have resolved by an explicit
      provision in their agreement directed to that issue.
      (2) The law of the state chosen by the parties to govern their
      contractual rights and duties will be applied, even if the particular
      issue is one which the parties could not have resolved by an explicit
      provision in their agreement directed to that issue, unless either
            (a) the chosen state has no substantial relationship to the
            parties or the transaction and there is no other reasonable
            basis for the parties' choice, or


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                                        No. 15-10757
               (b) application of the law of the chosen state would be
               contrary to a fundamental policy of a state which has a
               materially greater interest than the chosen state in the
               determination of the particular issue and which, under the
               rule of § 188, would be the state of the applicable law in the
               absence of an effective choice of law by the parties.
RESTATEMENT § 187; 5 see DeSantis, 793 S.W.2d at 677–78.
       We may assume, in Barnett’s favor, that we are dealing with an issue
the parties “could [not] have resolved by an explicit provision in their
agreement directed to that issue.” 6 Thus, as in a recent case in which we
applied Texas’s choice-of-law rules, to render the Agreement’s choice-of-law
provision unenforceable, Barnett must satisfy Section 187(2) of the
Restatement. See Cardoni v. Prosperity Bank, 805 F.3d 573, 581 (5th Cir.
2015). As in that case, Section 187(2)(a) does not help Barnett because Kuwait
clearly has a “substantial relationship” to this contract for services to be
performed there. See id. at 581–82; see also Exxon Mobil Corp. v. Drennen, 452
S.W.3d 319, 325 (Tex. 2014). Hence, the parties’ choice of Kuwaiti law would
control unless its application “would be [1] contrary to a fundamental policy of
a state [2] which has a materially greater interest than the chosen state in the
determination of the particular issue and [3] which, under the rule of § 188,




       5  Section 188 of the Restatement directs how to determine the governing law in the
absence of an effective choice of law by the parties. By cross-reference, it directs courts to
consider factors including (1) “the needs of the interstate and international systems,” (2) “the
relevant policies of the forum,” (3) the relevant policies and interests of other interested
states, (4) “the protection of justified expectations, (5) “the basic policies underlying the
particular field of law,” (6) “certainty, predictability, and uniformity of result,” and (7) “ease
in determination and application of the law to be applied.” RESTATEMENT §§ 188, 6(2). In
weighing these factors, courts are to consider “(a) the place of contracting, (b) the place of
negotiation of the contract, (c) the place of performance, (d) the location of the subject matter
of the contract, and (e) the domicil, residence, nationality, place of incorporation and place of
business of the parties.” Id. § 188(2).
        6 Otherwise, we would simply apply Kuwaiti law per the parties’ contractual choice.

See RESTATEMENT § 187(1).
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                                      No. 15-10757
would be the state of the applicable law in the absence of an effective choice of
law by the parties.” RESTATEMENT § 187(2); Drennen, 452 S.W.3d at 325–27.
      Taking the last of these requirements first, it is not clear that Texas law
would apply in the absence of an effective choice of law provision because, in a
contract for the performance of services, the main place of performance is “[as]
a rule . . . conclusive in determining what state’s law is to apply.” DeSantis,
793 S.W.2d at 679; see also RESTATEMENT § 196 (explaining that the “validity
of a contract for the rendition of services” is usually determined “by the local
law of the state where the contract requires that the services, or a major
portion of the services, be rendered”); cf. Castilleja v. Camero, 414 S.W.2d 424,
426 (Tex. 1967) (holding, before Texas’s adoption of the Restatement, that “[a]
contract which is made in one jurisdiction but which relates to and is to be
performed in another jurisdiction is governed by the law of the place of
performance”). Although Barnett trained for a week in Texas, the Agreement
covered more than two years of services rendered in Kuwait. Thus, there is a
strong argument that Section 187(2)(b) is not satisfied because Texas law
would not apply in the absence of a choice-of-law provision—and that the
Kuwaiti choice-of-law clause should therefore be given effect, making
irrelevant section 16.070’s prohibition on short contractual limitations periods.
Indeed, the Ninth Circuit concluded in a similar case that, even though “[t]he
relevant employment contract contain[ed] no choice of law provision,” 7 a
district court applying the Restatement correctly determined that Kuwait’s
substantive law governed, and should have applied that country’s one-year
statute of repose as well. Lee, 534 F. App’x at 626–27.
      But even if we assumed that Texas law would apply absent a choice-of-
law provision, and further assumed that Texas has a materially greater


      7   Lee v. ITT Corp., No. C10-0618-JCC, 2012 WL 8751733 (W.D. Wash. Feb. 10, 2012).
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                                       No. 15-10757
interest in the time for suing under the Agreement, 8 we would still need to ask
a very similar question as we would if we looked only to Bremen and its
progeny: would application of Kuwaiti law contravene a fundamental policy of
the state of Texas, as expressed in section 16.070?
                                              C.
       The Restatement does not give “a general definition of ‘fundamental
policy,’” and the Texas Supreme Court has been reluctant to provide one itself.
Drennen, 452 S.W.3d at 327. That high court has, however, made clear that
application of foreign law “is not contrary to the fundamental policy of the
forum merely because it leads to a different result,” or “is materially different.”
DeSantis, 793 S.W.2d at 680. “[T]he focus,” rather, “is on whether the law in
question is a part of state policy so fundamental that the courts of the state
will refuse to enforce an agreement contrary to that law, despite the parties’
original intentions, and even though the agreement would be enforceable in
another state connected with the transaction.” Id.
       We conclude that enforcing the Kuwaiti choice-of-law clause, even given
the statute of repose, would not contravene a fundamental policy of the state
of Texas.      This court has affirmed a refusal to apply section 16.070’s
substantially similar predecessor to an agreement not shown to be “a Texas
contract.” Watson v. R.I. Ins. Co., 196 F.2d 254, 254–56 (5th Cir. 1952). That
suggests that section 16.070 limits parties’ freedom to contractually shorten
limitation periods only in contracts otherwise governed by Texas law, and that



       8 The latter assumption is also debatable because, as discussed below, Article 144’s
statute of repose is a substantive part of Kuwait’s labor law. Because we assume these points
in Barnett’s favor, we need not discuss the Texas courts’ interpretation of the Restatement’s
guidance that the contacts relevant to Section 188 “are to be evaluated according to their
relative importance with respect to the particular issue” being evaluated. Compare
Chesapeake Operating, Inc. v. Nabors Drilling USA, Inc., 94 S.W.3d 163, 171–73 (Tex. App.
2002) (en banc), with id. at 182–84 (Wittig, J., dissenting). Nor do we opine on application of
the Restatement outside of the context of Texas law.
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                                       No. 15-10757
its underlying policy has similarly limited reach.                  Consonant with that
interpretation (and when, as here, the party arguing for Texas law failed to
meaningfully brief Texas’s choice-of-law rules), one federal court sitting in
Texas rejected an argument that section 16.070 voided a one-year limitations
period in a contract with a Virginia choice-of-law clause. Bakhico Co. v. Shasta
Beverages, Inc., No. Civ.A.3:94-CV-1780-H, 1998 WL 25572, at *11 (N.D. Tex.
Jan. 15, 1998).
       More fundamentally, we are dealing not with a contractual limitations
period, but with a contractual choice of foreign law that includes a one-year
statute of repose for certain claims. “Unlike a statute of limitations, ‘a statute
of repose creates a substantive right to be free from liability after a legislatively
determined period.’” Burlington N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419
F.3d 355, 363 (5th Cir. 2005) (quoting Cadle Co. v. Wilson, 136 S.W.3d 345, 350
(Tex. App. 2004)); see also CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2182–83
(2014). A statute of repose, therefore, typically operates as “a substantive
definition of, rather than a procedural limitation on, rights.” Trinity River
Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 261 (Tex. 1994) (quoting Lamb
v. Wedgewood S. Corp., 302 S.E.2d 868, 872 (N.C. 1983)); see also Galbraith
Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 866 (Tex. 2009). And
here, an expert declaration that Barnett does not challenge states that
Kuwait’s one-year statute of repose is indeed “substantive.” 9
       The statute of repose, therefore, is part of Barnett and DynCorp’s choice
of a body of substantive law to govern their relationship. The text of section
16.070—which proscribes provisions “that purport[] to limit the time in which


       9 See Fed. R. Civ. P. 44.1 (“In determining foreign law, the court may consider any
relevant material or source, including testimony, whether or not submitted by a party or
admissible under the Federal Rules of Evidence.”); cf. Walls v. Gen. Motors, Inc., 906 F.2d
143, 146 (5th Cir. 1990) (holding that a federal court sitting in Mississippi was bound to apply
an Oregon statute of repose because Oregon courts had held it to be substantive).
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                                        No. 15-10757
to bring suit” or “establish[] a limitation period that is shorter than two
years”—gives no indication that it bars provisions selecting foreign law that
includes, as a substantive matter, a shorter-than-two-years statute of repose.
No Texas court has interpreted section 16.070 or a predecessor statute that
way. 10 And we see no other sufficiently strong indication to make an Erie 11
guess that the Supreme Court of Texas would do so. See Hux v. S. Methodist
Univ., 819 F.3d 776, 780 (5th Cir. 2016) (describing a federal court’s role in
applying state law); Galindo v. Precision Am. Corp., 754 F.2d 1212, 1217 (5th
Cir. 1985) (“[I]t is not for us to adopt innovative theories of . . . Texas law, but
simply to apply that law as it currently exists.”). 12
       We are particularly reluctant to adopt Barnett’s novel reading of section
16.070 because it would create unpredictability for contracting parties. As is


       10  Barnett relies on Spicewood Summit Office Condominiums Ass’n v. America’s First
Lloyd’s Insurance Co., 287 S.W.3d 461 (Tex. App. 2009), for the proposition that section
16.070 invalidates these clauses because they have the “practical effect” of imposing an illegal
limitations period. That case is unavailing. There, the contract required that a lawsuit be
brought “within 2 years and one day after the date on which the direct physical loss or
damage occurred,” but also required the insured to submit certain documents and wait for a
claim acceptance or denial before suing. Id. at 465–66. Thus, it was clear from the contract
that the clock would always start ticking before the insured’s claim for breach of contract
accrued, with “the practical effect of providing a period in which to file suit that is less than
two years.” Id. at 466. Spicewood teaches that parties may not avoid section 16.070 through
cleverly drafted limitations provisions—not that section 16.070 bars parties from choosing to
be governed by substantive law that includes a relatively short statute of repose.
        11 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
        12 We find unpersuasive Barnett’s best cited authority for applying section 16.070 to

invalidate a choice-of-law clause. In that unpublished case, a bankruptcy court denied
summary judgment on which law applied where a contract provided that (1) New York law
would govern and (2) no action could be brought under the contract more than one year after
the claimant gained knowledge of the cause of action. Jenkins v. Fandango, Inc. (In re Vectrix
Bus. Sol.), No. 01-35656-SAF-11, 2004 Bankr. LEXIS 792, at *3–4, 11 (Bankr. N.D. Tex. June
2, 2004). Though it cited Texas’s choice-of-law rules in overriding these clauses based on a
“fundamental policy” embodied in section 16.070, id. at *5–9, that court elided the
requirements that to overcome the parties’ choice of law, (1) Texas law would need to apply
in the absence of a choice-of-law provision and (2) Texas must have a materially greater
interest in the determination of the particular issue. See Drennen, 452 S.W.3d at 325–27.
More importantly, Jenkins, like Spicewood, dealt with an express contractual limitations
period, not application of a foreign state’s substantive law that includes a statute of repose.
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                                     No. 15-10757
oft-stated in cases involving choice-of-law clauses, among the prime objectives
of contract law are “protecting parties’ expectations and enabling parties to
predict accurately what their rights and liabilities will be.” Drennen, 452
S.W.3d at 325. 13 And “[u]nlike traditional limitations provisions, which begin
running upon accrual of a cause of action, a statute of repose runs from a
specified date without regard to accrual of any cause of action.” Trinity River,
889 S.W.2d at 261. The statute of repose in this case runs from the end of the
relevant employment relationship. A claim for breach of contract in Texas, by
contrast, “accrues when the contract is breached,” Cosgrove v. Cade, 468
S.W.3d 32, 39 (Tex. 2015); that, logically, must be when section 16.070’s “time
to bring suit” also begins. From all that appears in the record about Article
144, it would sometimes allow more than two years after a breach to sue on a
contract. It therefore seems that under Barnett’s theory, whether Kuwaiti law
could be chosen would depend on the temporal proximity of the breach of
contract and the end of the employment relationship—something that parties
cannot predict ex ante. This further weakens Barnett’s position that section
16.070, or any fundamental policy behind it, stretches to bar the choice-of-law
and forum-selection clauses here.
       Based on these considerations, we conclude that enforcing the Kuwaiti
choice-of-law provision would not contravene a fundamental Texas policy. See
Nexen, 224 S.W.3d at 421 (“Generally speaking, application of another
jurisdiction’s laws is not contrary to the forum state’s fundamental public
policy merely because application of the other state’s law leads to a different
result[.]”). So even indulging every relevant assumption in Barnett’s favor, we
would not invalidate the choice-of-law clause, and if nonfederal contract law



       13Cf. Braspetro Oil Servs. Co. v. Modec (USA), Inc., 240 F. App’x 612, 615 (5th Cir.
2007) (unpublished) (similar point for forum-selection clauses).
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                                       No. 15-10757
controls the “validity” of the forum-selection clause, that law is Kuwait’s. For
the same reasons, if federal law alone controls, Barnett has failed to show that
enforcement of the forum-selection clause is unreasonable because it would
contravene a strong forum-state policy.
                                              D.
       In sum, without deciding whether Barnett’s validity-enforceability
distinction has merit, we conclude that his relied-upon state law neither voids
this forum-selection clause nor renders its enforcement unreasonable under
federal law. 14 The district court was therefore right to apply Atlantic Marine’s
modified forum non conveniens framework. As the district court recognized,
Barnett’s choice of forum merits no weight in this analysis, and the private-
interest factors “weigh entirely in favor of the preselected forum,” Kuwait. See
Atl. Marine, 134 S. Ct. at 582. All that remains are the public-interest factors,
which include
       administrative difficulties flowing from court congestion; the local
       interest in having localized controversies decided at home; the
       interest in having the trial of a diversity case in a forum that is at


       14 A chosen forum is not fundamentally unfair merely because its law is less generous
than, or because the result might differ from that under, the forum state’s law. See
Haynsworth, 121 F.3d at 969 (“The view that every foreign forum's remedies must duplicate
those available under American law would render all forum selection clauses worthless and
would severely hinder Americans’ ability to participate in international commerce.”);
Martinez, 740 F.3d at 229 (foreign law was not inadequate despite its shorter limitations
period and higher cost of litigation). Consistent with this principle, the Ninth Circuit has
held, in an unpublished disposition, that the Kuwait Labour Law’s statute of repose is not
“unfair” and “does not deprive [plaintiffs] of a fair opportunity to sue.” Lee, 534 F. App’x at
626–27 (applying Washington conflict of laws statute). We note that at least two U.S. states
apply a one-year statute of limitations to similar claims. See Ariz. Rev. Stat. § 12–541; Del.
Code Ann. tit. 10, § 8111. And if the limitations period is not itself unreasonable, that an
action may be time-barred in the chosen forum does not make a forum-selection clause
unreasonable, either. See Trafigura Beheer B.V. v. M/T PROBO ELK, 266 F. App’x 309, 312
n.4 (5th Cir. 2007) (unpublished) (“[C]onsideration of a statute of limitations would create a
large loophole for the party seeking to avoid enforcement of the forum selection clause. That
party could simply postpone its cause of action until the statute of limitations has run in the
chosen forum and then file its action in a more convenient forum.” (quoting New Moon
Shipping Co. v. MAN B & W Diesel AG, 121 F.3d 24, 32 (2d Cir. 1997))).
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                                      No. 15-10757
      home with the law that must govern the action; the avoidance of
      unnecessary problems in conflict of laws, or in the application of
      foreign law; and the unfairness of burdening citizens in an
      unrelated forum with jury duty.
Weber, 811 F.3d at 776. These factors justify a refusal to enforce a forum-
selection clause only in “truly exceptional cases.” Id. Barnett did not attempt
to carry this “high burden of persuasion,” id., and the governing law and place
of performance point toward Kuwait. The district court did not abuse its
discretion by dismissing this action.
                                            IV.
      This appeal highlights a lack of clarity about the role state law plays in
diversity cases involving forum-selection clauses after Atlantic Marine and
Stewart. We need not resolve that issue here, though, because Barnett has not
shown that enforcement of the parties’ bargained-for choices of law and forum
would contravene a strong or fundamental policy of the forum state. The
judgment is AFFIRMED. 15




      15   We need not discuss DynCorp’s alternative arguments for affirmance.
                                             19
