IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10757

JONATHAN BARNETT, 

 Plaintiff - Appellant

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, 

United States Court of Appeals

Fifth Circuit

FILED

July 26, 2016

Lyle W. Cayce

Clerk

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No. 15-10757

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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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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-ofservice 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 forumselection 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 forumselection 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 ForumSelection 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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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 federallaw 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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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 forumselection 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 forumselection 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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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 forumselection 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 choiceof-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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“[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 forumselection 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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(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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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-oflaw 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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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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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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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 Erie11

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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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 

 

13 Cf. 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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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 privateinterest 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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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 forumselection 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. 

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