IN THE SUPREME COURT OF THE STATE OF DELAWARE GERMANINVESTMENTS AG, and § RICHARD HERRLING, individually § and on behalf of AHMR GmbH, § § No. 291, 2019 Plaintiffs-Below, § Appellants, § § Court Below: v. § Court of Chancery § of the State of Delaware ALLOMET CORPORATION, and § YANCHEP, LLC, § § C.A. No. 2018-0666-JRS Defendants-Below, § Appellees. § Submitted: December 11, 2019

Decided: January 27, 2020 Before SEITZ , Chief Justice; VALIHURA and TRAYNOR , Justices. Upon appeal from the Court of Chancery. AFFIRMED , in part, REVERSED , in part, and REMANDED

. R. Craig Martin, Esquire, ( argued ) Kelly L. Freund, Esquire, DLA Piper LLP, Wilmington, Delaware for Appellants. John P. DiTomo, Esquire, ( argued ) Ryan D. Stottmann, Esquire, Coleen W. Hill, Esquire, Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware for Appellees.2 VALIHURA , Justice: In this case, we consider whether the Court of Chancery correc tly determined that a provision in a Restructuring and Loan Agreement between the par ties (the “R&L Agreement”) is a mandatory, as o pposed to a permissive, forum s election clause. That clause reads: “The agreement is subject to Austrian law. The place o f jurisdiction is Vienna.” The Court of Chancery held that Austrian law governs the analysis o f the forum selection provision, and determined that the provision is governed by Art icle 25 of the European Regulation on Jurisdiction and Re cognition and Enforcement of J udgments in Civil and Commercial Matters (the “Brussels Regulation”). Applying Artic le 25 of the Brussels Regulation, it held that the forum selection clause was mandato ry. Based upon these conclusions, the court granted Defendants’ Rule 12(b)(3) motion to dismiss, without prejudice, in favor of the Vienna, Austria forum. We hold that the Appellees, who raised Austrian law as a basis for their motion to dismiss, had the burden of estab lishing the substance of Austri an law. 1 We further hold that, given the complexity of the fore ign law issues raised and the a bsence of any focused and orderly engagement by the parties on these issues, the Court of Chancery erred in determining that Appellees had carried that burden. Accordingly, we hold t hat, given the Appellees’ failure of proof, the forum sel ection provision analysis should proceed exclusively under

1 This basic proposition is not in dispute. See Oral Argument Video at 19:48–19:55, https://livestream.com/Delawar eSupremeCourt/events/8915746/vide os/199787022: Justice Valihura: You agree that it is your burden to establis h what the substance of the foreign law is? Counsel for Appellees: Oh absolutely, Your Honor.3 Delaware law. Applying Delaware law, the forum selection provi sion is merely permissive, not mandatory. As such, the fo rum selection provision is no ba r to the litigation proceeding in Delaware. We affirm the Court of Chancery’s holding that 8 Del. C. § 168 was not the proper mechanism for the relief Appellants seek. Therefore, th is matter is AFFIRMED in part, REVERSED in part, and REMANDED to the Court of Chancery for further proceedings in accordance with this opinion.
I. BACKGROUND We take the facts, for the most part, from the Court of Chance ry’s recitation of them, which in turn, was drawn from th e Complaint, documents incorpor ated by reference or integral to the Complaint, and additional materials provided by the parties in connection with Defendants’ motion to dismiss.
A. The Parties and Rele vant Non-Parties Appellant, Plaintiff-below, Ge rmaninvestments Aktiengesellscha ft (AG) (“Germaninvestments”) is a Swiss holding company formed to mana ge assets for the Herrling family. 2 Its equity is divided among their family members as follows: Richard Herrling holds 34 percent; Anja Herrling holds 17 percent; Phil ip Herrling holds 24.5 percent; and Johannes Herrling holds 24.5 percent. Appellant, Plaintiff-below, Richard Herrling (“Herrling”), is a Germ an citizen who resides in Switz erland. We refer to Germaninvestments and Herrling collectively as “Appellants” or “Plaintiffs.” Defendant-below, Allomet Corpor ation (“Allomet”), is a Delawar e corporation

2 Germaninvestments AG v. Allomet Corp. , 2019 WL 2236844, at *2 (Del. Ch. May 23, 2019) [hereinafter Opinion ] (citing Verified Compl aint (“Compl.”) ¶ 4).4 founded in 1998 with its headquarters in North Huntingdon Towns hip, Pennsylvania. It manufactures high-performance, toug h-coated metal powders using a proprietary technology for coating industri al products. Non-party, Fobio E nterprises, Ltd. (“Fobio”), a Hong Kong limited company, initia lly owned 52,249 of Allomet’s 54,132 outstanding shares of common stock and all of its 1,304 shares of preferred stock. In April 2016, Fobio acquired the remaining 1,883 shares of Allomet’s common stock, previously held by the Estate of Richard E. Toth. 3 Defendant-below, Yanchep LLC (“Y anchep”), is a Delaware limite d liability company with Mirta Hereth, the wife of Dr. Hannjörg Hereth (“He reth”), as its sole member. Its only assets are the two parcels of real property i n North Huntingdon where Allomet is headquartered and a lease, dated November 8, 2011, b etween Yanchep and Allomet. 4 Together, we refer to Allomet and Yanchep as “Appellees.” Non-party, AHMR GmbH (“AHMR”), an Austrian limited company, wa s formed solely for the purpose of holding all of the equity interest in Allomet and Yanchep, Allomet’s intellectual property, and Yanchep’s assets. Non-par ty, Hereth, a citizen of Switzerland, owns 100% of Fobio t hrough various entities. Here th is also a director and the Chairman of the Board o f Directors of Allomet.

3 Id. at *2 (citing Compl. ¶¶ 50, 52). The R&L Agreement states that the Toth shares were “acquired by [Dr. Hannjörg Hereth] or Fobio pursuant to a purchase contra ct dated 12 April 2016 —payment of USD 250,000 still outstandi ng[.]” App. to Opening Br. at A54 (Compl. Ex. B (“Ex. B”) ¶ 4).
4 Opinion , 2019 WL 2236844, at *2 (citing Compl. ¶¶ 7, 45, Compl. Ex. A (“Ex. A”), Compl. Ex. D (“Ex. D”)).5 B. The Parties Negotiate A Po tential Joint Venture To Keep Allomet Afloat Allomet struggled with declini ng performance as early as 2002. By the end of 2017, Allomet had amassed net-operating-loss carryforwards of $25 mil lion and $42.5 million in debt owed to its controller, Fobio. 5 In mid-2016, Tanja Hausfelder, an insurance professional who a pparently knew or worked with both Herrling and Hereth, advised Herrling that Her eth was looking for a joint venture partner to join Allomet. On October 5 and 6, 2016, Her rling and Hereth met in Switzerland, where Hereth confirme d he was interested in formin g a joint venture for the purpose of raising capital for t he struggling Allomet. After their meeting in Switzerla nd, Herrling and Hereth discus sed a general structure for their joint venture. Specifi cally, the plan contemplated t he formation of an Austrian holding company that would own (i) Allomet’s intellectual prope rty rights, (ii) the outstanding stock and membership interests in Allomet and Yanch ep, and (iii) all of Yanchep’s buildings, land, and r ights. Because Fobio had been the principal source of financing for Allomet since its founding, 6 the parties discussed whether it would be appropriate to assign or otherwise transfer Fobio’s claims agai nst Allomet to the joint

venture. 7

5 Id. at *3 (citing Compl. ¶ 16).
6 Id. (citing Compl. ¶ 29). Fobio ha d extended a total of $42,525,4 75.25 in loans to Allomet.
7 Id. (citing Compl. ¶ 20, Ex. B ¶ 4). Appellants alleged that Herr ling would obtain 50 percent ownership of the holding company, and that all existing indebte dness of Allomet to Fobio would be cancelled or contributed to the holding company. App. to Openi ng Br. at A22 (Compl. ¶ 20).6 As the parties negotiated the joint venture, it was clear that Allomet required additional funding to continue its operations. Accordingly, beginning Jan uary 31, 2017, Herrling extended a series of loans to A llomet to keep it afloat. Herrl ing initially loa ned $500,000. On March 3, 2017, Herrling loaned $150,000. On May 10, 2017, H errling loaned another $200,000.
C. The Parties Enter the R&L Agreement On May 29, 2017, a draft of what was to become the R&L Agreeme nt was circulated among the various parties. 8 The express purpose of the R&L Agreement was “to regulate the funding of the Allomet Corpor ation until the establishment, under Austrian law, of a holding company in which [Herrling] and [Hereth] shall acquire a 50% stake and which shall later hold all of the shares (100%) of the Allomet Corporation. ” 9 The R&L Agreement memorialized the terms of the loans Herrling had extended to Al lomet, the potential framework for continued discussions concerning a potential Aust rian-based joint venture, and the funding each party was expected to contribute to the jo int venture. 10 It also detailed a loan schedule reflecting that H errling would make loans to th e entity in four tranches

8 Opinion , 2019 WL 2236844, at *3 (citing Compl. ¶ 22, Ex. B).
9 Id. (quoting Compl. ¶ 23).
10 Id. (citing Ex. B Pmbl., ¶¶ 1, 4). The R&L Agreement’s Preamble st ates: As the holding company has yet to be established, the initial p ayment shall be made by [Herrling], representatively, in the form of a loan to the A llomet Corporation. [Herrling] shall contribute a sum of EUR 10 million plus USD 25 0,000—Toth— over a period of 5 years. The payments shall be made in consul tation with [Hereth], according to Allomet’s liquidity requirements and based on an e valuation of the market need. App. to Opening Br. at A54.7 totaling $950,000. The loans woul d accrue interest at 5.5% int erest per annum without prepayment penalties or amortization. 11 As noted above, the R&L Agreement states: “The agreement is s ubject to Austrian law. The place of jurisdiction is Vienna.” 12 We refer to this provision as the “Forum Clause.”
D. Formation of AHMR The parties formed the Austrian holding company contemplated b y the R&L Agreement, AHMR, on July 3, 2017. AHMR was registered with the commercial register of the commercial court in Vienna, Austria the following month. I ts initial stockholders were Hereth, Herrling, Hausfelder, and Hereth’s son-in-law, Valentin Biedermann. On December 14, 2017, Herrling allegedly transferred his share of AHMR to G ermaninvestments, the holding company for his family’s investment assets. 13 AHMR is a “manager-managed” en tity with two groups of managing directors: Group A consists of Biedermann, Hereth, and his wife, Mirta Hereth by proxy; Group B consists of

11 Opinion , 2019 WL 2236844, at *3 (citing Ex. B ¶¶ 3, 5). The loans wer e extended “until” July 31, 2017, with a one-time option of a 6-month extension “agreed mutually between [Hereth] and [Herrling].” App. to Opening Br. at A54. During that time, “unle ss the parties decide[d] otherw ise, an Austrian holding company [was] to be established in which th e following assets of Allomet and Yanchep shall be incorporated:” (1) Allomet’s outstanding stock ; (2) all of Allomet’s IP rights registered as of July 31, 2017; a nd (3) Yanchep’s real property owned as of July 31, 2017. Id . at A54–A55. The R&L Agreement recognized that “[i]f the aforement ioned steps have not been implemented by 31/07/2017, the loan shall become due for repaym ent immediately or the one-time extension may be agreed mutuall y between [Hereth] and [Herrling ].” Id

. 12 Opinion , 2019 WL 2236844, at *4 (q uoting Ex. B ¶ 9).
13 Id. (citing Compl. ¶¶ 4, 33). AHMR’ s resulting stockholders are He reth (49%), Germaninvestments (49%), Biedermann (1%) and Hausfelder (1%). App. to Opening Br. at A19, A25. Hausfelder allegedly assi gned her litigation rights to Ge rmaninvestments. Id. at A25–A26 (Compl. ¶ 34).8 Herrling, Hausfelder by proxy, and Anja Herrling by proxy. 14 Both groups’ managing directors must agree on AHMR’s major decisions as stated in AHM R’s governance documents and as provided by Austrian law. 15
E. Other Related Agreements In their Opening Brief on appeal, Appellants focus on AHMR’s “S tock Purchase Agreement with Fobio and a relate d assignment agreement under w hich it purchased 100% of the stock of Allomet.” 16 In their Complaint, they allege d that the parties entered int o five separate agreements, all execute d on the same day, to carry out the remaining terms of the R&L Agreement, namely: (1) the Stock Purchase Agreement (“SPA” ), (2) a Membership Interest Purchase Agreement (“MI PA”), (3) an Assi gnment and Ass umption Agreement, (4) a Debt Cancellation Agreement, a nd (5) a Supplementary Agreemen t. 17 Appellants alleged that, “[a]s agreed in the Restructuring Agr eement, Fobio, AHMR, and Dr. Hereth entered into a Stock Purchase Agreement (“SPA”) dated January 24, 2018, under which AHMR obtained all of the outstanding shares of Allo met from Fobio.” 18

14 Opinion , 2019 WL 2236844, at *4 (citing Compl. ¶ 35).
15 Id. The Vice Chancellor commented that, “[a]lthough not important t o the outcome here, I note that the Group A and Group B managing directors have not agreed that this litigation should be initiated on behalf of AHMR.” Id. at n.38 (citing Compl. ¶¶ 35, 82).
16 Opening Br. at 9–10.
17 App. to Opening Br. at A27–A28 (Compl. ¶ 39)

. 18 Id. at A29 (Compl. ¶ 42). They alleg e, more specifically, that: Under Section 3.2 of the Stock P urchase Agreement, and consiste nt with the terms of the Restructuring Agreement, “[a]t the closing of this trans action SELLER [Fobio] shall deliver or cause to be delivered to PURCHASER [AH MR] all certificates (if any) representing the Seller Shares and, if re quested by9 Appellants further allege that “Mrs. Hausfelder and Mr. Biederm ann took possession of Allomet’s outstanding stock certificates, though they still ref lected the names of their previous owners, and placed them in AHMR’s safe-deposit box in Vienna, Austria.” 19 According to Appellants, “[s]ince that time no member of Dr. He reth’s Group A has been willing to agree with any member of Mr. Herrling’s Group B to e nable the shares to be released from the safe-deposit box and tendered to Allomet to e nable it to issue certificates
to AHMR.” 20
F. Herrling “Walks” From the Negotiations From May 2017 through January 2018, while the parties continue d to negotiate their joint venture, Herrling visite d Allomet numerous times and rece ived detailed information on Allomet’s operations and finances. 21 He also extended additional loans to Allomet, either individually or through Germaninvestments, bringing Allomet’s t otal obligation to Herrling to $3,665,000. 22 While he “book[ed]” these loans under “the terms of the [R&L] Agreement,” 23 the R&L Agreement only refe rences $950,000 in loans. 24 It is alleged that the

PURCHASER [AHMR] at any time, ex ecute and deliver lost stock af fidavits for lost certificates.” Id. (quoting Compl. Ex. C).
19 Id. at A27 (Compl. ¶ 38).
20 Id

. 21 Opinion , 2019 WL 2236844, at *4 (citing Compl. ¶ 35).
22 Id. (citing Compl. ¶ 36).
23 Id. (quoting Compl. ¶ 37).
24 Id. (citing Compl. ¶¶ 24, 26, Compl. Ex. G (“Ex. G”)).10 parties discussed, but never fin alized, a loan agreement among Herrling and Allomet to address the loans outs ide the R&L Agreement. 25 On January 29, 2018, the day before the R&L Agreement was to e xpire, AHMR’s shareholders entered into the Supplementary Agreement, referred to above, the purpose of which was to allow time for the parties to secure additional ta x advice regarding the structure of the joint venture. 26 Under the Supplementary Agreement, the parties were to “regard the already signed [Transaction Agreements] as def initive” and agreed they would “ then be Executed/Implemented as such.” 27 The Supplementary Agreement provided, however, that the documents referenced therein are not legally binding and di d not execute the joint venture. Specifically, the Supplementary Ag reement stated the documents referenced had not yet “been legally signed,” had not yet “become legally binding,” an d did not represent the “full legal implementation” of the joint venture. 28 It also deferred the parties’ funding obligations

25 Id

. 26 Id. (citing Ex. G).
27 Id. (quoting Compl. ¶ 62).
28 Id. (quoting Ex. G). Paragraph 4 of the Supplementary Agreement st ates: It is agreed between the Parties that [Herrling] or Germaninves tments AG shall not make further payments until all the contracts referred to here (see above), this Supplementary Agreement and als o the Loan Agreement between Germaninvestments AG and the Allo met Corporation have been lega lly signed. This is also a prerequisite for Allomet’s ongoing operating cos ts. The further payments, especially the two referred to below, shall be made w ithin one month following full legal implementation or after all the contracts mentioned in this Agreement have become legally binding and been executed as well as after all the Allomet shares have been transferred to Vienna and once this “S upplementary Agreement” has fully expired. App. to Opening Br. at A92 (Ex. G ¶ 4).11 and recognized that the potentia l joint venture still had to be negotiated. 29 By its terms, the Supplementary Agreement expired in March 2018. 30 By mid-April 2018, the par ties had reached an impasse. 31 Herrling had not received the “transparency” he expected a nd believed “important business decisions were negotiated without [him].” 32 On May 30, 2018, the parties stopped all joint venture discus sions. 33 With hope for an agreement now lost, Herrling offered to “walk away from the [R&L] Agreement with Dr. Hereth, provided, of c ourse, that Allomet return all f unds to Herrling and Germaninvestments, plus costs.” 34 For his part, Hereth made clear that neither Herrling nor Germaninvestments possessed any interest in Allomet. 35 Hereth then offered to return only “a fraction” of the money Herrling had either loaned to (Hereth ’s view) or invested in (Herrling’s view) Allomet. 36
G. The Proceedings in th e Court of Chancery Appellants filed their Verified Complaint on September 7, 2018 , alleging three counts. Count I seeks to enforce the R&L Agreement and related agreemen ts invoking
8 Del. C. § 168 to require Allomet to “ reissue” its stock certificates i n AHMR’s name as

29 Opinion , 2019 WL 2236844, at *4 (citing Ex. G ¶¶ 3, 4).
30 Id. (citing Ex. G).
31 Id. at *5 (citing Compl. ¶ 71, Compl. Ex. H).
32 Id. (quoting Compl. ¶65).
33 Id. (citing Compl. Ex. I).
34 Id. (quoting Compl. ¶ 75).
35 Id. (citing Compl. ¶ 76).
36 Id

.12 contemplated by the R&L Agreement and SPA. 37 Count II alleges breach of the R&L Agreement and related agreemen ts and seeks specific performance of those agreements. Count III alleges unjust enrichment as a result of Appellees’ f ailure to transfer all of Allomet’s outstanding stock, Allomet’s intellectual property, a nd Yanchep’s membership units and real property to AHMR as agreed in the R&L Agreement. Appellees moved to d ismiss the action on December 16, 2018, pr imarily arguing that the court should grant the motion so that the parties may litig ate these claims in Vienna, Austria. Appellees provided scant information to the Court of Chancery on Austrian law in their opening brief in support of their motion to dismiss. The y cited to and attached Article 25 of the Brussels Regulation, 38 but cited no cases in support of their 12(b)(3) motion on the substance of Austrian law. 39 Nor did they cite any secondary sources of information or proffer any expert testimony. Appellants opposed the motion, arguing that the Forum Clause i s neither mandatory nor enforceable with respect to th eir claim under Section 168. They contended that the European law on which Appellees relied does not apply to non-Eu ropean Union members, and that even if it did, it would not compel dismissal of their action. They further argued

37 App. to Opening Br. at A38–A40 (Compl. ¶¶ 80–85); see id. at A29 (Compl. ¶ 40) (“As agreed in the [R&L] Agreement, Fobio, AHMR, and Dr. Hereth entered into a Stock Purchase Agreement (‘SPA’), dated January 24, 2018, under which AHMR obtained all of the outstanding shares of Allomet from Fobio.”).
38 Id. at A139 (Defs.’ Opening Br. a t 18–19), A159 (Defs.’ Opening Br. Ex. 1).
39 See id. at A141–A142. Appellees did cite in a footnote several cases i n support of its argument that the Complaint failed to s tate a claim under Rule 12(b)(6). See id. at A141 n.7.13 that, under Austrian law, an Austrian court would not find that the Forum Clause would confer mandatory jurisdi ction on Vienna courts. In their answering brief, Appellants objected to the applicati on of foreign law and argued that the Forum Clause should be interpreted in accordanc e with Delaware law. They contended that Appellees had pr ovided only conclusory statement s on Austrian law and, consequently, had failed to meet their burden of proof. As a r esult of that failure, they argued that the Forum Clause was permissive under either Delaware or A ustrian law. Moreover, Appellants argued that the Brusse ls Regulation only applied to Member States of the European Union, and that AHMR, who was not a signatory to the R &L Agreement, was not bound by it. Thus, they argued th at the Forum Clause does not apply to the Section 168 claim (which was brought on behalf of AHMR) or to the unjust enrichme nt claim. Appellants raised other arguments based on several other provi sions of the Brussels Regulation, including Articles 8, 24, 26, 27, 31, and several o f its “Whereas” recitals. For example, they argued that the objective of Article 24 “is to en sure that proceedings regarding the internal affairs of a corpor ate entity should be dealt with by the courts of the state where that entity is incorporated, si nce these courts will be familia r with the applicable corporate law.” 40 They also asserted that, “Article 8 of the Brussels Regulatio n provides that defendants can be sued where they are domiciled and a Delaware corporation, like Allomet,

40 Id. Brussels Regulation Article 27 provides that, “[w]here a court of a Member State is seized of a claim which is principally concerned with a matter over which the courts of another Member State have exclusive jurisdiction by virtue of Article 24, it shall d eclare of its own motion that it has no jurisdiction.” Id. at A170.14 is domiciled in Delaware.” 41 Appellants supported their arguments with citations to Austri an cases and provided translations of certain excerpts of those ca ses. 42 As to Article 25, Appellants argued that by its pla in terms, it does not apply if the parties “have agreed otherwise.” They further cited Section 914 of the Austrian Civ il Code for the proposition that the mutual intent of the parties controls. In their reply brief, Appellees argued that Article 25 of the Brussels Regulation is clear and unambiguous. They supplied a transmittal affidavit of thei r Delaware counsel attaching various secondary sources, consisting mostly of articles. 43 Appellees then challenged Appellants’ assertion that Austrian law, and not the Brussels R egulation, applied. They asserted that Article 25 of the B russels Regulation was “exclus ive,” that Austria had supplanted its local law through ratification of the Brussels R egulation, and that Appellants were relying on superseded aut horities. They also responded to Appellants’ assertions based upon Articles 8 and 24 of the Brussels Regulation, among others . As to Article 24, Appellees countered that, “this action does not implicate an internal aff airs question, nor could it until

41 Id. at A349.
42 Id. at A341. Appellants also rely on Whereas Clause 6 and 13. Id. at A345. Clause 6 provides: “In order to attain the objectiv e of free circulation of judgme nts in civil and commercial matters, it is necessary and appropriate that the rules governing jurisdict ion and the recognition and enforcement of judgments be governed by a legal instrument of t he Union which is binding and directly applicable.” Id. at A161 (Brussels Reg.). Clause 13 provides: “There must be a connection between proceedings to which this Regulation applies and the te rritory of the Member States. Accordingly, common rules of jurisdiction should, in principle, apply when the defendant is domiciled in a Member State.” Id. at A162. Appellees counter that these clauses are merely recit als, and lack the force of Articles.
43 See id. at A512–A515 (Coleen W. Hill Aff. in Supp. of Defs.’ Reply Br. in Further S upp. of their Mot. to Dismiss), A516–A682 (Exs. A–L.).15 the dispute concerning the R&L Agreement is resolved.” 44 Article 8, they asserted, applies to a “person domiciled in a member state,” which neither Allome t nor Yanchep are. Broadly, Appellees claimed that Articles 8, 24, 26, and 31 all apply to member states, and that Delaware is not a member state. They said that, therefore, tho se provisions of the Brussels Regulation are not relevant. Further, Appellees countered t hat the question of enforcement is not whether Delaware is bound by the Brussels Regulation, but rather, wheth er the court should honor the parties’ contractual choices. T hey argued that it should, sinc e enforcement of the Forum Clause is a matter of contract, not comity. 45 As to Section 914 of the Austrian Civil Code, they argued that it only addresses the interpretation of agreem ents in cases where the wording of the agreement is wrong by reason of mistake and does not ref lect the intention of the parties. Thus, they argued that it is not implicated here. We note that one of the authors Appellees cited for the propositi on that the Brussels Regulatio n applies later submitted an affidavit for the Appellants contradicting that assertion, argu ing instead that the Austrian Jurisdictional Act applies. During the oral argument on Appellees’ motion to dismiss, the Vice Chancellor expressed some obvious discomfor t with the state of the record on the foreign law issues. For example, the Court commented as follows: THE COURT: All right. So a couple things, just to give you b y way of some seventh-inning analysis.

44 Id. at A485. 45 See Nat’l Indus. Grp. (Hldg.) v. Carlyle Inv. Mgmt. L.L.C. , 67 A.3d 373, 387 (Del. 2013) (“The enforcement of an international forum selection clause is not a n issue of comity. It is a matter of contract enforcement and giving e ffect to substan tive rights th at the parties have agreed upon.”).16 I’m going to take the matter under advisement, but I do want t o give you some advance warning that it is possible that - - I’m not s aying likely - - it’s possible we’ve got to wrestle through several issues that would get us to a point where we would go down this road. But it is possible that you would hear from me saying I need more inform ation on Austrian law/EU law as relates to the Brussels treaty, whatev er we’re calling it, various articles and how they relate to one another

. I think to get there, we would have to decide several issues i n a particular way. I think we would have to decide that the forum selection provision should be interpreted under Austrian law as opposed t o Delaware law. If it was to be interpreted under Delaware law, as I unde rstand it, the outcome would be that it’s not mandatory and, therefore, not st rictly enforceable to require litigati on of the dispute in Vienna. We’d also have to decide that Section 115 of the DGCL would no t nullify the provision as a matter of law. We’d also, I suppose, have to decide in that regard potentiall y that the claim in Count I under 168 is pre mature in that there are contr act disputes that first have to be litigated and resolved. And finally, we would have to grappl e with the question of what the presence of the unjust enri chment claim here does to the analysis on choice of forum, understanding that there’s an argument that it doesn’t state a claim as a matter of law. But assuming it doe s, does its presen ce in the complaint somehow nullify the choice of forum with respect to the contract claim, understanding that if the Court enforced that provision, there would be a split of claims and litigation? So those are several issues that we’ve got to wrestle with bef ore we get there. The last thing we’d have to wrestle with is, looking at the materials that have been supplied, is the law of Austria clear, in my mind, one way or the other, or are ther e questions or nuances? If I decide that there are, then there are two approaches that can be ta ken under Rule 44.1 and Rule 202(e), I think, of the Delaware Ru les of Evidence. One is that the Court employs its own expert, with input from the parties, having given notice to the parties of that. And there’s a process, obviously, that flows from t hat that comports with due process and gives the parties an opportunity to weigh in not only on the selection of the expert but then to ch allenge the conclusions of that expert.17 Often that is done by the parties engag ing their own experts. And that, at least, suggests to me some potentia l inefficiency in that approach. The other is that the parties, in fact, do just that, engage their own experts. We decide how those opinions should be supplied to the Court, tested by the parties, and then the Cour t draws from that additional evidence its conclusions regarding the state of Austrian law and how it should apply to these circumstances. Also not a mo del of efficiency, but it is, I think, recognized in our law as at times necessary to assi st the Court in wrestling with foreign law and having ultimately a declaration of what that law is, just as we would declare what our law is prior to applying it, in this case to the dispositive motions.
On the on e hand, the Saudi case that I mentione d before, affirmed by the Supreme Court, I think, reflects - - or is illustrative of the approach where the Court engages its own expert. A nd I think there was another case, the Pallano case, I believe also presided over by President Judge Jurden - - I was involved in that case as a Master - - and I recall it having involved some foreign law issues there. That was on one hand. And then the other is the Parlin case where the Court just said “L ook, these are nuanc ed questions. I have some reservation based on the written materials that have been submitted about making a formal declaration that this is, in fact, what the law is,” and asked to he ar more directly from experts on foreign law, and then made credibility determinations and ultimately made a decision

. Again, I’m not sure that I’m there, but I wanted to preview, i f I get there, why I’m there so that I don’t have to undertake that exp lanation again; you know, that if you hear from me in that regard, that’s what I’ve decided, that I need that additional info rmation. And then we can eithe r, through a meet and confer that you-all have or I would be happy to partic ipate in that, decide what the next steps are. 46 Without soliciting any further information from the parties, t he Court of Chancery dismissed all counts of the Complaint for lack of jurisdiction based upon its reading of the Brussels Regulation. It ruled that the Forum Clause was govern ed by Article 25, and therefore jurisdiction vested in a member state “shall be exclu sive unless the parties have

46 App. to Opening Br. at A773–A 777 (emphasis added).18 agreed otherwise.” 47 Accordingly, it held that, “when parties designate a single ‘ jurisdiction’ as the ‘place’ where they will re solve their disputes, that con tractual designation will be enforced as a mandatory forum selection clause.” 48 Thus, the court concluded that the Forum Clause was mandatory, not permissive. This is in contrast to D elaware law where “if the forum selection provision does n ot state that it is exclusive i n crystalline terms, our courts will construe the provision as permissive.” 49 In a footnote, the Court of Chancery observed that, “[w]hile t he Court could convene a hearing to take testimony rega rding the parties’ competing vi ews of the governing foreign law, there is no need to put the parties or the Court through t hat added burden because the law is, in my view, clear.” 50 The Vice Chancellor added that, “[a]lthough I am satisfied th at the law is clear, as might be gleaned from the analysis that fo llows, the process by which I have reached this conclusion was by no means ‘simple.’” 51 After the motion to dismiss was granted, the Appellants moved for reargument and submitted an affidavit of an Austrian law expert, Professor Die tmar Czernich. 52 This was the only expert submission in the case on the subject of foreig n law. The Czernich affidavit reaches two main conclusions:

47 Opinion , 2019 WL 2236844, at *8 (quoting Brussels Reg. Art. 25(1)) (in ternal quotation marks omitted).
48 Id. 49 Id

. 50 Id. at *6 n.73.
51 Id

. 52 See App. to Opening Br. at A796–A812 (A ff. of Prof. Dietmar Czernic h, LLM (NYU)).19 (1) With regard to prayers for relief A., B. and C. (ii) in th e first part, relating to corporate matters and claims in rem , the choice of forum agreement in clause 9 of the R&L Agreement is invalid because under the Brus sels Regulation and Austrian domestic law choice of forum agreements in corporate matters or in in rem actions are not admissible and invalid. (2) For all other prayers for relief, the choice of forum agre ement is valid. It is subject to Austrian law. Under Austrian domestic law, th is choice of forum agreement is per missive and does not mandate the exclusiv e jurisdiction of the designated courts in Vienna (Austria). Und er applicable Austrian law, actions under the R&L Agreement may also be broug ht before any other court of com petent jurisdiction. 53 Appellants, through Professor Czernich, argued further that un der Articles 4 through 6 of the Brussels Regulation, the Brussels Regulation applies ( a) if the defendant is domiciled in a Member State of the European Union, (b) if there is a choi ce of forum agreement in favor of a court which has its seat in a member state of the Eu ropean Union and the action is brought before any court which has its seat in the European Uni on, or (c) if there is a certain contract which mandates exclusiv e jurisdiction under Article 24 . Aside from other possible minimal grounds that he deemed irrelevant, he concluded that th e Brussels Regulation does not apply here. If the Brussels Regulation does not apply, he asserted, the jurisdiction of the courts in Austria is governed by domestic national law—the Aust rian Jurisdictional Act. He relied on Article 6 of the Brussels Regulation in support of th is proposition: “If the defendant is not domiciled in a Member Stat e, the jurisdiction of the cou rts of each Member State shall, subject to Article 18(1), Article 21(2) and Articles 24 and 25, be determined by the law of that Member State.” 54

53 Id. at A812. 54 Brussels Reg. Art. 6.20 Appellants further contended that the plain language of Articl e 25 makes clear that jurisdiction shall be exclusive “ unless the parties have agreed otherwise,” 55 which the Court of Chancery did not determine. 56 They further argued, via the affidavit, that Austrian law should govern resolution of that question and that regardless o f which law applies, the Delaware choice of law provisions in the other agreements evide nce an intent to “agree otherwise.” Czernich averred that the issue is not whether the Brussels Regulation overrides Austrian domestic law, but rather, what the parties meant—did t hey mean the Brussels Regulation or domestic Austrian law?

55 Appellants also asserted that “the parties didn’t intend to ha ve that exclusively governed in Vienna,” as evidenced by other agreements containing Delaware l aw and forum provisions, and thus Article 25 cannot be binding on them because they have “agreed otherwise” as to exclusive jurisdiction in Vienna. App. to Opening Br. at A736. Section 8.2(a) of the SPA re quires the parties to mediate disputes “between the parties as to the interpretati on or application of this Agreement,” and that the mediation “shall be held in Wilmington, Delaware o r any other venue upon which the parties shall agree.” Id. at A62. Section 8.2(b) of the SPA r equires any arbitration bet ween the parties to be conducted pursuant to the Delaware Rapid Arbitrat ion Act and that the arbitration “shall be conducted in Wilmington, Delaware or such other location as the parties and the arbitrator may agree . . . .” Id. at A62–A63. The MIPA contains parallel provisions. See id. at A72. Both agreements select Delaware as the governing law without giving effect to choice of law or conflicting provisions or rules that would cause the laws of another jurisd iction to be applied. The Assignment and Assumption Agreement also cont ains a similar Delaware choic e of law provision.
56 In their motion for reargument, Appellants asserted that the C ourt of Chancery erred in ignoring the arbitration clause in the SPA. In its order denying the mo tion for reargument, the court commented that, “Plaintiffs apparent rediscovery of the SPA’s a rbitration clause (not invoked before now) is puzzling given that one of their showcase arguments in opposition to the motion to dismiss was that the Court should sidestep the SPA by applying 8 Del. C . § 168.” Germaninvestments AG v. Allomet Corp. , 2019 WL 2644045, at *6 n.14 (Del. Ch. June 27, 2019) [hereina fter Order ]. Although in their answering brief below the Appellants argued t hat, “[t]he relevant stock purchase agreements for the purchase of Delaware equity and membership u nits are governed by Delaware law,” App. to Opening Br. at A337, they do not refer expressly to that agreement’s Rapid Arbitration provision to rebut an assertion by Appellees that Fobio was a n ecessary party, except in a footnote. Id. at A358 (Pls. Ans. Br. at 58 n.21). They did refer to the Dela ware Rapid Arbitration provision during oral argument below. See id. at A723. We agree with the Vice Chancellor that the SPA was not a focus in those proceedings a nd Appellants’ theories have seemed to evolve over time.21 In response to Appellants’ motion for reargument, Appellees of fered several points in rebuttal to the affidavit, including challenging Professor Czer nich’s reliance on Article 24 of the Brussels Regulation. They asserted that the affidavit is b ased upon the erroneous premise that this dispute concerns the internal affairs of Allomet and is an action in rem with respect the Yanchep’s real property in P ennsylvania. The y say neither is accurate. The Court of Chancery denied the motion and refused to conside r the affidavit, stating that it was “new evidence” and should have been submitted earli er. H. Issues on Appeal Appellants raise two main issues on appeal, as well as a host of sub-issues. First, they contend that the Court of Chancer y erred when it determined tha t it could not adjudicate ownership of a Delaware corporation under 8 Del. C. § 168. They assert that the Court of Chancery’s decision in Castro v. ITT Corp. 57 provides compelling support for the proposition that Section 168 of the DGCL is a proper basis for the relief t hey seek. As part of this argument, they contend that the court erred when it rejected th eir argument that the public policy underlying 8 Del. C. § 115 prohibits a corporation from eliminating Delaware as a forum to hear internal governance claims. That, of course, rai ses the question of whether this case presents internal governance claims, or as the Vice Chance llor found, a contractual dispute. Second, they contend that, even i f the Forum Clause were enfor ceable in this action, it is permissive, not mandatory. They argue that the Appellees failed to meet their burden of

57 598 A.2d 674 (Del. Ch. 1991).22 establishing the substance of Austrian law, and that by grantin g the motion to dismiss without the parties properly joining the issues, the Court improperly p laced the burden on Appellants and departed from the established practice in Delaware for asce rtaining the substance of foreign law. They also contend that the Court of Chancery erre d in refusing to consider their affidavit on foreign law submitte d in connection with their mot ion for reargument.
II. STANDARD OF REVIEW We review de novo the Court of Chancery’s ruling on the questions of Austrian an d European law. 58 Our review of the Court of Chancery’s interpretation of contr actual terms is de novo

. 59 Our interpretation of a statute is a question of law, which w e review de novo

. 60
III. ANALYSIS We begin by considering the fore ign law issues. Appellants bro adly contend that the court erred in its initial determ ination that Austrian law shou ld apply in analyzing the Forum Clause, and they raise four sub-issues. First, they contend th at questions of ownership of a Delaware entity should be decide d under Delaware law and that A ustria has no material relationship to the transactions at issue. Second, they assert that foreign law cannot be used to interpret a contract in a ma nner repugnant to Delaware polic y. In this regard, they say that

58 Deuley v. DynCorp Int’l, Inc. 8 A.3d 1156, 1160 (Del. 2010) (“A j udge’s ruling on foreign la w is a question of law we review de novo .”); see Saudi Basic Indus. v. Mobil Yanbu Petrochemical Co. , 866 A.2d 1, 30 (Del. 2005) (stating that, “[t]o the extent SABI C contends that the Superior Court made incorrect determinations of Saudi law or instructed the ju ry incorrectly on issues governed by Saudi law, such determinations and jury instructions are treate d as rulings on a question of law and are subject to de novo review,” and that where “the trial court’s determination of fo reign law rests on the credibility of foreign law experts, the trial court’s pr edicate credibility findings will be accorded appropriate deference”).
59 BLGH Hldgs. LLC v. enXco LFG Hldg. LLC , 41 A.3d 410, 414 (Del. 2012).
60 First Health Settlement Class v. Chartis Specialty Ins. Co. , 111 A.3d 993, 998 (Del. 2015).23 the court failed to consider the Delaware law provisions in the SPA and MIPA. Third, they argue that, if this Court agrees with the Vice Chancellor that Austria does bear a material relationship to the transactions, then we should first consider their argument that the court erred in determining that Appell ees had satisfied their burden of proof. Finally, they argue that, if we find no error as to the burden of proof, then we sh ould determine whether the court erred in its interpreta tion of Austrian law. As more fully explained below, we affirm the Vice Chancellor’s decision to apply Austrian law in its analysis of the Forum Clause because Austri an law bears a material relationship to the transactions at issue. But the court erred in determining that Appellees satisfied their burden of proof in establishing foreign law. A s a result of Appellees’ failure to carry their burden, we hold that the Court of Chancery shoul d apply the law of the forum (Delaware law) in analyzing the Forum Clause. 61 Applying Delaware law to the Forum Clause, the provision is clearly permissive, not mandatory. Ac cordingly, we hold that the Forum Clause is no bar to the ma tter proceeding in Delaware.
A. The Court of Chancery Incorrectly De termined That Appellees Met Their Burden of Establishing Austrian Law 1. Which Law Governs the Forum Clause Analysis? As a threshold matter, we must determine what law governs the a nalysis of the Forum Clause. We agree with the Court of Chancery that Austrian law applies here.

61 Accordingly, we do not consider t he other claims of error as t o whether Delaware public policy is violated by having this ma tter proceed in Austria.24 “When a contract contains a forum selection clause, this court will interpret the forum selection clause in acc ordance with the law chosen to govern th e contract.” 62 Choice of law provisions control so long as the jurisdiction selected bears s ome material relationship to the transaction. 63 This Court has stated that a ma terial relationship exists whe re a party’s principal place of business is l ocated within a foreign jurisdi ction, a majority of the activity underlying the action occurred wi thin the foreign jurisdiction, and where parties to a contract performed most of their services in the foreign state. 64 However, a foreign jurisdiction’s laws may not be used to interpret a contractual provision “in a mann er repugnant to the public policy of Delaware.” 65 The facts alleged here involve c onnections to several jurisdic tions. Allomet is a Delaware corporation with headqua rters in Pennsylvania. Yanche p is a Delaware LLC with assets in Pennsylvania. The stock at issue is located in Delaw are by operation of
8 Del. C. § 169. Germaninvestments is a Swiss company, with headquarter s in Switzerland. Herrling is domiciled in Switzerland. Hereth is a citizen of S witzerland. Fobio is a Hong Kong limited company. The parties executed the R&L Agreement i n Switzerland, and

62 Bonanno v. VTB Hldgs., Inc. , 2016 WL 614412, at *5 (Del. Ch. Feb. 8, 2016) (quoting Ashall Homes Ltd. v. ROK Entm’t Grp., Inc. , 992 A.2d 1239, 1245 (Del. Ch. 2010)) (internal quotation marks omitted).
63 Deuley , 8 A.3d at 1161; Annan v. Wilmington Trust Co. , 559 A.2d 1289, 1293 (Del. 1989); see also Ingres Corp. v. CA, Inc. , 8 A.3d 1143, 1146 (Del. 2010) (“Forum selection [ ] clauses a re ‘presumptively valid’ and should be ‘specifically’ enforced unl ess the resisting party ‘[ ] clearly show[s] that enforcement would be unreasonable and unjust, or t hat the clause [is] invalid for such reasons as fraud and overreachi ng.’” (citati on omitted)).
64 Deuley , 8 A.3d at 1161.
65 Id . (quoting J.S. Alberici Const. Co. v. Mid-West Conveyor Co. , 750 A.2d 518, 520 (Del. 2000)) (internal quotation marks omitted).25 Plaintiffs allege that all negotiations occurred in Switzerland , other parts of Europe, or Pennsylvania. The R&L Agreement, a focal point of Plaintiffs’ Complaint, contains the Forum Clause and selects Austri an law as the governing law. Th e SPA and MIPA, which relate to the purchase of Delaware equity, are governed by Dela ware law. Non-party AHMR was formed in Austria. The safe-deposit box containing the Del aware certificates is physically located in Austria. The Court of Chancer y ruled that, “[t]here can be no doubt . . . that Austria ‘bears [a] material relationship to the transaction.’” 66 It reasoned that Austrian law applied to the R&L Agreement that contemplated the formation of an Austrian joint venture. The court further determined that “this action is undeniably about Plaintiffs’ cl aims to enforce the Austrian law-governed R&L Agreement.” 67 Moreover, the court observed that each count for relief relates directly to the R&L Agre ement. Thus, the court held th at, “Austrian law will govern the construction of Section 9 of the R&L Agreement.” 68 As explained below, given our holding that Section 168 does not apply, the focus of the Compl aint is on the R&L Agreement in Count II (as opposed to the SPA ), as well as on the unjust e nrichment claim. 69 Therefore,

66 Opinion , 2019 WL 2236844, at *6 (citing J.S. Alberici Const. Co. , 750 A.2d at 520).
67 Id. 68 Id. 69 Appellants also argued that because Delaware and Austrian law would both deem the Forum Clause to be permissive, and not mandatory, there was a “false conflict” and that a choice of law analysis is unnecessary. See, e.g., Deuley , 8 A.3d at 1161 (citing Berg Chilling Sys., Inc. v. Hull Corp. , 435 F.3d 455, 462 (3d Cir. 2006) (“According to conflicts of law principles, where the laws of two jurisdictions would produ ce the same result on the parti cular issue presented, there is a ‘false conflict,’ and the C ourt should avoid the choice-of-law-questio n.”)). But here, the threshold question is whether under Austrian law, the Forum Clause is governed by the Brussels Regulation, which all parties agree reverses the presu mption that forum clauses are n ot mandatory unless they are in “crystalline” terms. In other words, it is not disputed that A ustrian domestic and Delaware law would26 we agree with the Court of Chancery’s determination that the co nnection to Austria is sufficiently material so as to require the analysis of the Foru m Clause to be examined under Austrian law. 70
2. Appellees Failed to Meet Their Burden of Establishing the Substance of the Foreign Law at Issue We next address Appellants’ cont ention that the Appellees faile d to meet their burden of establishing the substance of the foreign law, and that the Court of Chancery, in effect, improperly shifted the burden of proof to them and allowed Appe llees to hold back all of their proof until their reply brief. Appellants also complain that the Court of Chancery did not consider their expert affid avit, the only expert affidavit submitted in this action (which was submitted in connection with their motion for reargument). Court of Chancery Rule 44.1 make s clear that Appellees were req uired to provide notice in their pleadings or other reasonable written notice of their intention to rely upon

both deem the Forum Clause permissive. But the question is whe ther Article 25 trumps Austrian domestic law (as Appellees contend), or whether the parties int ended for Austrian domestic law (not the Brussels Regulation) to control (as Appellants contend). H ere the foreign law dispute centers on the interplay between the Brussels Regulation and European law on the one hand, and domestic Austrian law on the other. Our holding that Appellees failed t o carry their burden of establishing the foreign law on these issues lead s us inevitably back to Delawar e in any event.
70 On appeal, Appellants have, undoubt edly, sharpened their focus and emphasis on the SPA and its Delaware forum and choice of law provision. They assert that t he Vice Chancellor erred in holding that Appellants had waived thei r arguments base d on these provi sions in the SPA. See Order , 2016 WL 2644045, at *6 n.14. Appellants did refer to the SPA in the ir Complaint, see , e.g. , App. to Opening Br. at A38–A39 (Compl. ¶¶ 80, 82, 83), and in the proce edings below. See , e.g. , App. to Opening Br. at A337, A723, A727, A730, A736. But their argumen ts regarding the SPA were not squarely presented in their briefing. See id. at A735–A736. In any event, we have reviewed all of the relevant agreements, and our decision affirming the determi nation that the connections to Austria were sufficiently material is no t dependent upon the Vice Chanc ellor’s finding of waiver.27 foreign law. 71 Compliance with proper notice under Rule 44.1 is not at issue here. What is contested is whether Appellees met their burden. To the extent our prior cases have not explicitly held, we hold that the party seeking the application of foreign law has the burden not only of raising the issue of the applicability of foreign l aw, but also, of establishing the substance of the forei gn law to be applied. 72 Appellants contend that the Court of Chancery effectively put the burden on them to rebut Appellees’ assertio n and thereby departed from the “established practice” for es tablishing the substance of fo reign law. That assertion raises the question of whether there i s an “established practice” and if so, what it is. We sympathize with the trial judge as there are very few decisi ons from this Court that can serve as a reference in this area. Generally, the pro cess by which foreign law is determined is necessarily context- specific, and trial judges ha ve wide latitude in determining

71 Court of Chancer y Rule 44.1 provides: A party who intends to raise an issue con cerning the law of a f oreign country shall give notice in his pleadings or other reasonable written notice . The Court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible un der Rule 43. The Court’s determination shall be treated as a ruling on a questio n of law.
72 This holding is consistent with d ecisions of the Court of Chan cery and the Superior Court. See , e.g. , Vichi v. Koninklijke Philips Elecs., N.V. , 85 A.3d 725, 765 (Del. Ch. 2014) (“In cases where foreign law may be applicable, the party seeking the applicatio n of foreign law has the burden of not only raising the issue that forei gn law applies, but also the b urden of adequately proving the substance of foreign law.” (citation and in ternal quotation marks omitted )); see also Rep. of Pan. v. Am. Tobacco Co. , 2006 WL 1933740, at *4 (Del. Super. June 23, 2006), aff’d sub nom

. State of São Paulo of Federative Rep. of Braz. v. Am. Tobacco Co. , 919 A.2d 1116 (Del. 2007) (“In or der for the Court to consider the application of foreign law, the party seeking t he application of foreign law has the burden of not only raising the i ssue that foreign law applies, but also the burden of adequately proving the substance of foreign law.”); 9 J AMES W M

. M OORE ET AL ., M OORE ’ S F EDERAL P RACTICE § 44.1.04[1] (3d ed. 2006) (“The party that wishes to rely on f oreign law has the responsibility of demonstrating its content.”); Jeffrey F. Ghent, Annotation, Pleading and Proof of Law of Foreign Country , 75 A.L.R.3d 177, § I.2[a] (1977) (“the courts appear to be in agreement on the general rule that the burden of proving the law of a foreign country is on t he party relying on it”).28 what evidence to consider and in what form. Even so, that lati tude is not unbounded. We highlight a few decisions to disc ern some general guideposts. Saudi Basic Indus. Corp. v. Mobil Yanbu Petrochemical Co. , 73 a case mentioned by the Vice Chancellor, is one such case where this Court approved the process by which the trial judge ascertained the subs tance of the foreign law at iss ue. There, this Court considered whether the Superior Court had engaged in a proper methodology and analytical process to determine Saudi Arabian law. Appellant, Saudi Basic Industries Corporation (“SABIC”) argued that the trial court, although purporting to employ the methodology that a Saudi judge would follow to determine the applicable Saudi law, ijtihad , in fact invoked ijtihad merely as an after-the-fact rationalization for foreign law rulings th at were essentially arbitrary and unprincipled. 74 This Court rejected those contentions because the record clearl y established that the trial judge “went to extraordinar y lengths to understand the ap plicable Saudi law and to make rulings that were consistent with the numerous Saudi law source s presented to her.” 75 We found that the trial judge was ke enly mindful of key distinctiv e features of Saudi law and the problems that it created for defining the elements of, and reme dies for, ghasb (usurpation) and how to instruct the jury on these issues. As an example of such distinctive features, Islamic law does not embrace the common law system of binding p recedent and stare decisis

. In Saudi Arabia, judicial decisions are not in themselves a sou rce of law, and with minor

73 866 A.2d 1 (Del. 2005).
74 Id. at 29. The parties agreed that Sa udi law applied to the resolu tion of the dispute.
75 Id. at 30.29 exceptions, court decisions in Saudi Arabia are not published o r even open to public inspection. Instead of relying upon statutes or decisional pre cedent to discern the applicable law, Saudi judges use scholarly treatises as guides to identify a spectrum of possibilities on a given question, as opposed to a single correct answer. Thus, the critical inquiry was whether the proper ana lytical procedures (or ijtihad ) were followed in reac hing the results. We found that the trial judge properly recognized the proper an alytical procedures in reaching the result. 76 The trial judge made “exceptional efforts to ensure that she was fully informed of the Hanbali teachings upon which to ground her lega l rulings.” 77 Before trial, the parties presented the trial judge with seven reports from f our Saudi law experts (two from each side), as well as each expert’s lengthy deposition. Perce iving a conflict in the experts’ opinions, the trial judge retained an independent expert and ob tained his advice on the critical issues. This expert prepared an initial report, a supplemental report, and was deposed for a full day. After reviewing nine reports and over one thousand p ages of deposition testimony, the trial judge held a day-long pre-trial hearing to permit the parties to present live testimony of the independent expert, among others. The court considered two additional reports posttrial. On that record, this Cou rt concluded that there was no basis for SABIC to contend that the trial court’s analytical pro cess was arbitrary, unprinciple d, or lawless.

76 For example, the trial judge stated that “[w]hen faced with th e daunting task of determining the elements of ghasb and the damages available for this tort, the Court, weighing t he credibility of each Saudi law expert, exercised, as best it could under the circums tances, ijtihad , to reach the ‘right’ result.” Id. at 31.
77 Id. at 31. The Hanbali is an Islamic law guild or school of thoug ht. “In Saudi Arabia, the judges are instructed to rule exclusiv ely in accordance with the teach ing of the Hanbali guild.” Id. at 30.30 The Superior Court’s decision in Republic of Panama v. American Tobacco Co. 78 is also instructive. It illustrates a situation where the burden of proof was not satisfied. In Republic of Panama , two foreign governments, the Republic of Panama and the State of São Paulo, Brazil (the “Foreign Gove rnments”), brought an action ag ainst a domestic tobacco company to recover medical expenses incurred while treating for eign citizens for health issues associated w ith tobacco products. 79 Among other claims, the Foreign Governments specifically sought recovery for negligence, breach of voluntar y undertaking, unjust enrichment, fraud, and civil conspiracy under Delaware law. Th e company filed a motion to dismiss for failure to state a claim upon which relief can be g ranted. The court held that Delaware law would apply because the Foreign Governments did no t meet their burden of establishing the substantive app licable law of Panama and Brazi l. The Superior Court stated that the party seeking the applicatio n “has the burden of not only raising the issue that forei gn law applies, but also the b urden of adequately proving the substance of the foreign law.” 80 Though the Foreign Governments provided affidavits on Panamanian and Brazilian law, the court concluded that they wer e insufficient because the affiants did not have any formal legal training. Specifically, the court found that: [b]oth affiants head their respective governments’ health agenc ies and, of course, it is inevitable that in that capacity they will gain s ome understanding of their countries’ laws. Their governments are each a party t o this action, and their governments are seeking to recover the medical expens es incurred by the very same agencies the affiants head. However, neither of these two

78 2006 WL 1933740 (Del. S uper. June 23, 2006).
79 Id. at *1.
80 Id. at *4.31 affiants have proffered that they have an expertise in law of t heir jurisdictions. The affiants are not attorneys, law professors, or judges. 81 Even acknowledging that courts h ave “wide latitude” in determin ing what evidence to consider and in what form, it st ated that given the far-reachin g relief sought by the Foreign Governments, they should have at least submitted affidavits fro m legal experts. Accordingly, it held that “Delaware law will control all claims made by the Foreign Governments.” 82 Delaware courts have frequently relied on experts to ascertain the substance of foreign law. In Pallano v. AES Corp. , for example, the Delaware Superior Court, before rendering its decision on a motion to dismiss, hired its own Dominican la w expert. 83 The court relied upon the expert in deciding that motion, commenting that, “[t]h e court felt it necessary to appoint its own Dominican law expert when it became apparent th at the plaintiffs’ and defendants’ experts disagreed on the proper interpretation of D ominican law.” 84 In Parlin v. Dyncorp Int’l, Inc. , 85 the Superior Court considered expert declarations concerning U nited Arab Emirates and Dubai law but held that the decision did not turn on foreign law because the result was the same under both Delaware and Dubai law. 86 Finally, in Kostolany v.
Davis , 87 the parties submitted expert affidavits on Dutch and French la w. 88 The Court of

81 Id. at *5.
82 Id

. 83 2012 WL 1664228, at *1 n.2 (Del . Super. May 11, 2012).
84 Id; see Deuley , 8 A.3d at 1161

. 85 2009 WL 3636756 (Del. Super. Sept. 30, 2009).
86 Id. at *2.
87 1995 WL 662683 (Del. Ch. Nov. 7, 1995).
88 Id. at *2–3.32 Chancery deemed the affidavits sufficient and found no need for expert depositions or live expert testimony. The procedural rules followed by our trial courts reflect their considerable latitude in determining what evidence to consider in determining issues of foreign law. For example, the text of Court of Chancery Rule 44.1 provides, in relevant p art, that, “[t]he Court, in determining foreign law, may cons ider any relevant material or source, including testimony, whether or not submitte d by a part y or admissible under Rule 43 .” 89 “Typically, the movant will submit enough ‘relevant material’ to the Court to sufficie ntly establish the content of foreign law.” 90 But that did not happen here. Appellees, as movants, supplie d only the text of Article 25 of the Brussels R egulation. They cited no cases, commentaries, or other authorities, and proffered no expe rt testimony. They offered a cademic support in the form of secondary sources, but only in their reply papers after Appe llants had responded to their motion. Thus, Appellants had no real or meaningful opportunity to respond to these authorities prior to th e court’s ruling. Although the trial court states in its Opinion that, “the parti es have provided extensive foreign authority and affidavits interpreting that authority,” 91 the only affidavit we see that was considered by the Court was the transmittal affidavit by an associate at Appellees’ local Delaware firm attaching various secondary sources. Even as to these sources, the expertise

89 Ct. Ch. R. 44.1.
90 Rep. of Pan. , 2006 WL 1933740, at *5 (citing Kostolany , 1995 WL 662683, at *1 (noting that issues of foreign law were full y developed by expert witnesses) ).
91 Opinion , 2019 WL 2236844, at *6 n.73.33 of the authors was not established. New arguments and one expe rt affidavit surfaced after the ruling, and the court refuse d to consider the expert’s affi davit. Our review of the record compels us to conclude that De fendants’ insufficient initial su bmission led to the parties’ failure to properly join the issues in an o rderly way. 92 The trial judge obviously struggled with the issues and questio ned the sufficiency of the record before him prior to ruling. We believe that early i nput from experts would have been helpful in identifying and explaining the issues based upo n the facts and nuances in the case. The failure to identify, early on, and properly join the issues, coupled with the lack of any expert input on the numerous nuances of Austrian and Europe an law that were ultimately raised, leads us to conclude that the Court of Chancery erred i n determining that Appellees had satisfied their burden of proof. 93 We are not today establishing a per se rule that expert testimony must be utilized in all instances to establish the substance of foreign law. Admit tedly, the issues presented in
Saudi Basic were unusually complicated given the foreign law at issue and the general lack of familiarity and experience of D elaware courts in applying Sa udi Arabian law. But even so, there are inst ances, such as in Ashall Homes Ltd. v. ROK Entm’t Grp., Inc. , 94 where the Court of Chancery, when faced w ith questions of English law (wh ere we do share a common

92 See Rep. of Pan. , 2006 WL 1933740, at *5 (holding th at the movant articulating the substance of foreign law “should have submitted affidavits from legal expert s” in order to satisfy “their threshold requirement of establishing the s ubstance of [foreign law]”).
93 Both sides agreed that our standa rd of review of foreign law i ssues is de novo . Arguably, the question of determining whether a movant has met its burden of proof involves some exercise of discretion. Even if our review is mixed, and includes some dis cretionary elements, it does not alter our holdings.
94 992 A.2d 1239, 1246 (Del Ch. 2010).34 law heritage), found that the parties failed to adequately esta blish its substance. There, the court concluded that the partie s provided in their agreements t hat their relationship would be governed by English law. 95 But because the court concluded that “neither party has cited to English law—the law for which th ey bargained—in its briefing on this motion to any material degree,” 96 the court ruled that the analy sis “will proceed exclusively un der Delaware law.” 97 At a minimum, the cases suggest t hat the movant’s initial submi ssion should be fulsome enough to address the foreign law in the context of the specifi c circumstances at issue, and that the parties and the court should carefully evaluate the ne ed for expert input, particularly if the parties disagree as to the substance of the foreign law. Based upon the foregoing, the court below erred in determini ng that the Appellees satisfied t heir burden of proof.
3. What is the Effect of Appellees’ Failure of Proof? We next address the resulting effect of Appellees’ failure to m eet the burden of establishing the substance of f oreign law. Appellants contend that the court should decline to apply foreign law, and apply Delaware law instead. Alternat ively, this Court could remand to allow the Court of Chancery to consider further evidence on the foreign law issues. However, we do not believe the latter approach is efficient or equitable. Appellees never

95 Id. at 1245; see Rep. of Pan. , 2006 WL 1933740, at *5. There, the Sup erior Court concluded that “the Foreign Governments have not satisfied their threshold req uirement of establishing the substance of the foreign law,” and, therefore, the court did no t reach the issue of, assuming that the substance of Panamanian and Brazilian law was properly establis hed, whether the foreign law would apply. Instead, it held that, “Delaware law will control all c laims made by the Foreign Governments.” Id

. 96 Ashall Homes , 992 A.2d at 1246.
97 Id.35 disputed that they had the burde n of proof, and t hey had an opp ortunity to put on their proof relating to the operation of A ustrian law to these facts. We utilize, instead, the approach adopted by the Court of Chanc ery in its decision in
Ashall Homes , and following this br oadly accepted approach, 98 we apply Delaware law to analyze the Forum Clause. As th e Court of Chancery correctly o bserved, “under Delaware law, if the forum selection provision does not state that it is exclusive in crystalline terms, our courts will construe the provision as permissive.” 99 Thus, under Delaware law, the Forum Clause is merely permissive, not mandatory. 100 Accordingly, we hold that the Forum Clause presents no bar to the litigati on proceeding in Delaware. 101

98 See , e.g. , In re Avantel, S.A. , 343 F.3d 311, 322 (5th Cir. 2003) (affirming lower court’s ap plication of the “well-settled principle” that when the parties fail to c onclusively establish foreign law, a court is entitled to look to its own forum’s law).
99 Opinion , 2019 WL 2236844, at *8.
100 See In re Bay Hills Emerging P’rs I, L.P. , 2018 WL 3217650, at *5 (Del. Ch. July 2, 2018) (noting that under Delaware law, a forum clause will be deemed mandator y only if it “contain[s] clear language indicating that litigation will proceed exclusively in the designated fo rum” (citation omitted)); RWI Acq. LLC v. Todd , 2012 WL 1955279, at *6 (Del. Ch. May 30, 2012); Troy Corp. v. Schoon , 2007 WL 949441, at *2 (Del. Ch. Mar. 26, 2007) (“If the contr actual language is not crystalline, a court will not interpret a forum selection claus e to indicate the parties intended to make jurisdiction exclusiv e.” (citation and internal quotation marks omitted)); Prestancia Mgmt. Grp., Inc. v. Va. Heritage Found., II LLC , 2005 WL 1364616, at *7 (Del. Ch. May 27, 2005) (“‘[A]bsent cl ear language, a court will not interpret a forum selection clause t o indicate the parties intended to make the jurisdiction exclusive.’” (quoting Eisenbud v. Omnitech , 1996 WL 162245, at *1 (Del. Ch. Mar. 21, 1996)).
101 Our review of the record convin ces us that the substance of th e foreign law at i ssue has not been established adequately. Because the record is insufficient for us to determine whether the court erred in interpreting Austrian law, we do not address Appellants’ spe cific issues in that regard. See , e.g. , Rep. of Pan. , 2006 WL 1933740, at *4 (“The Court need not reach the substan tive issues regarding the possible application of foreign law because the Foreign Gov ernments have failed to meet their threshold procedural burden in est ablishing the substantive app licable law of Panam a and Brazil.”).36 B. The Remaining Issues on Appeal To be as helpful to the Court of Chancery regarding further pro ceedings on remand, we address the remaining issues on appeal.
1. The Court of Chancery Co rrectly Held That Secti on 168 Is Not the Proper Mechanism to Address the Competing Ownership Claims Count I of Appellants’ Complaint seeks issuance of new stock c ertificates pursuant to
8 Del. C. § 168. Appellants allege that they “are entitled to an order requiring Allomet to issue new uncertified shares or a new certificate of stock in t he name of AHMR in place of the certificates effectively lost, stolen or destroyed.” 102 They argue that the Court of Chancery can, and has, heard Sec tion 168 cases where there was a question of ownership with respect to the shares and where the location of the certif icates is known, but where they are inaccessible. The Court of Chancery rejected, on two grounds, Appellants’ Sec tion 168 argument that denying them a Delaware forum would violate positive law o r Delaware’s public policy. First, it held that Section 168(a) “does not fit here.” 103 It reasoned that Section 168, which provides for the replacement of a lost, stolen, or destroyed st ock certificate for the beneficial owner of the stock, “is not and never was intended to address d isputes regarding stock ownership, the resolution of w hich would require the issuance o f new stock, not replacement stock,” 104 and that, here, “[n]o stock has been lost, stolen or destroyed .” 105 Second, the court

102 App. to Opening Br. at A40 (Compl. ¶ 85).
103 Opinion , 2019 WL 2236844, at *9.
104 Id. 105 Id.37 ruled that, “the aspect of the parties’ dispute where Plaintiff s seek to invoke Section 168(a) involves a disagreement regardin g the ownership and transfer of shares under an agreement ( i.e ., the dispute among AHMR and Fobio under either the R&L Agreem ent or the SPA contemplated by th e R&L Agreement).” 106 The court found that, “[t]hat is a dispute grounded in contract, not the DGCL.” 107 On appeal, Appellants contend that the Court of Chancery erred in ruling that Section 168 was the wrong mechanism for th em to vindicate their equitab le rights to Allomet as owners of AHMR. They point primarily to the holding in Castro v. ITT Corp. , 108 where Chancellor Allen allowed an ac tion to proceed under Section 168 . Appellants also rely upon Chancellor Allen’s statement in a footnote, which they contend allows for the exercise of subject matter jurisdiction based upon equitable principles, ev en where Section 168 does not “fit” precisely. 109 Appellants argue that the court “should decide a dispute as a matter of equity under Section 168 or otherwise when a Delaware corporati on’s board chairman and

106 Id. 107 Id. 108 598 A.2d 674 (Del. Ch. 1991).
109 There Chancellor Allen noted: In all events, petitioners seek mandatory injunctive relief, an d in no event may their action be characterized as simply a dispute about legal title. The essence of petitioners’ claim is that they do not have legal title but can establish equitable title that in the circumstances is sufficient to qualify them as “own ers” or “lawful owners” under Section 168. This cl assically is a matter for a court of equity.
Id. at 677 n.4.38 chief executive officer sells sto ck and delivers stock certific ates to the purchaser but then interferes with the purchasers ’ ability to exchange those certi ficates.” 110 Appellees, on the other hand, contend that a claim arising und er Section 168 requires that two predicate facts be alleged: (1) the stock in dispute was owned and issued to the plaintiff previously; and (2) the stock certificate representin g the shares owned were “lost, destroyed or stolen.” They claim neither is satisfied. We agree with the Court of Chancery that the question of owner ship is, and has been, disputed all along. Among other i ssues, the parties disagree a s to the legal effect of the Supplementary Agreement. Appe llants allege that, “[t]he purpos e of the Supplementary Agreement was to acknowledge that the AHMR shareholders were co nsidering with their advisors the tax implications of the transfer of Allomet’s and Yanchep’s equity to
AHMR.” 111 Yet they maintain that the Supplementary Agreement was clear that any amendments to the transaction ag reements would occur by March 3 1, 2018, at which time the Supplementary Agreement would expire, and the parties were to “‘regard the already

110 Opening Br. at 20. A ppellants also critic ize the Vice Chancel lor for not addressing Castro in his written decision. But we note that Castro was discussed by the parties and commented on by the court during oral argument. For example, the Vice Chancellor o bserved during oral argument on the motion to dismiss: [T]he Castro case was a case where there were undisputed members of an enti ty that was being held hostage by the Cuban government. And the C ourt, invoking equity, said it’s dissolved. The re was no dispute then what wa s going to happen as a result of the dissolution. The members’ ownership in the ent ity, not disputed. Right? Here, what your friends on the other side are saying is “No, no. They are not 50 percent owners here. They have no equity interest in th is. They didn’t get there.” App. to Opening Br. at A730–A731.
111 App. to Opening Br. at A33 (Compl. ¶ 61).39 signed [Transaction Agreements] as definitive’ and should ‘then be Executed/Implemented as such.’” 112 Appellants allege that in breach of the R&L Agreement and SPA , Allomet has not reissued its stock in AHMR’s name. Instead, “the stock cer tificates previously owned by Fobio remain in Fobio’s name and “[t]he stock certificates p reviously owned by Toth remain in Toth’s name.” 113 Accordingly, they allege that, “Allomet’s stock certificates, have been effectively lost, stolen, or destroyed beca use they are locked in a safe-d eposit box in Vienna that cannot be accessed without Dr. Hereth.” 114 Appellees, on the other hand, point to other language in the S upplementary Agreement that refers to agreeme nts referenced therein as havin g not yet “been legally signed.” 115 Paragraph 4 of the Supplementar y Agreement refers to certain “further payments” which “shall be made within one month following full legal implementation or after all the contracts mentioned in this Agreement have become legally binding and been executed as well as after all the Allomet shares have been tran sferred to Vienna and once this ‘Supplementary Agreement’ has fully expired.” 116 Moreover, they maintain that the Supplementary Agreement contemplated another “Supplementary Agr eement” that was never drafted or executed. Thus, the parties clearly disagree as to their ownership interests in AHMR.

112 Id. (Compl. ¶ 62) (quoting Suppl ementary Agreement).
113 Id. at A39 (Compl. ¶ 83).
114 Id. (Compl. ¶ 84) (emphasis added).
115 Id. at A92 (Ex. G ¶ 4).
116 Id

.40 We believe Castro is distinguishable, principally because in Castro , there was no question as to the petitioners’ ow nership interests in the part nership prior to the seizure of the partnership by the Cuban government. Moreover, the decisio n in Castro focused heavily on the legal effect of the Cuban government’s seizure of the pa rtnership and the application of the principle that “U.S. domestic law ought not to facilitat e indirectly the seizure by a foreign government without just c ompensation of property locate d in the U.S. . . .” 117 In view of the parties’ heavy focus on Castro , we address it here. The petitioners in Castro , general partners and heirs of partners in a Cuban partnership, claimed to be the equitable owners of the original shares of stock in ITT Corporation (a Delaware corpora tion) which were registered in t he name of the partnership. In 1962, the Cuban government forcibly seized the partnership, allegedly, without paying any compensation. The following year, the U.S. government froz e all assets of Cuban nationals or entities located in the United States. Thereafter , in 1968, ITT declared a twofor-one stock dividend. Because of the government’s blocking o rder, ITT never delivered the stock dividend or later cash dividends on the original shar es to the partnership. In 1989 and 1990, the U.S. Treasury issu ed unblocking licenses authoriz ing ITT to unblock the disputed shares and all accumulated dividends. Cross motions for summary judgment were filed when petitioners sought to compel ITT, pursuant to Section 168, to issue stock certificates and p ay cash dividends and to transfer the shares and accumulated divide nds that were being accumulate d and held by ITT for the

117 Castro , 598 A.2d at 680.41 owner of the shares. ITT declined to transfer the shares as au thorized by the Treasury licenses and insisted that petitioners fur nish it with a surety bond tha t would fully protect it in the event a later owner appeared. At the tim e the petition was fil ed, it was allege d that, over the years, no claims or communications had been made to ITT with re spect to these shares by anyone other than petitioners. 118 Petitioners argued that if their claim to beneficial ownershi p were provable, failure to reco gnize it would accord an illicit seizure the dignity of a valid act of state—something courts in sim ilar cases have refused to do. ITT asserted that because the petitioners were not registered o wners of its stock, it did not have an obligation to recogni ze their equitable ownership c laims. It also a rgued that the court did not have jurisdiction over this matter because it was essentially one to determine legal title to property. Lastly, it argued that the case must be dismissed because the Republic of Cuba was an indispensable party. Chancellor Allen rejected all three assertions and denied both motions for summary judgment. He first considered the question of whether the peti tioners were precluded from relief because the shares were registered to the partnership en tity rather than the petitioners. Examining the language in 8 Del. C . § 168, he concluded that, “[ t]he language of that section makes it apparent that the ‘owners’ that have rights under that section are not limited to ‘registered owners.’” 119 He reasoned that, “[t]here are commonly occurring situations in which, by reason of death, dissolution, or merger of the regist ered owner or transfer by it, a

118 The court noted, however, that since that time, an individual had come forward with possession of certificates for 400 shares registered in the name of the pa rtnership and claimed to have information regarding other certificates. Id. at 676 n.3. 119 Id. at 677.42 person other than the registere d owner will, upon appropriate p roof, be recognized as the owner of lost certificates under Section 168.” 120 “Thus, for purposes of Section 168, registration on the issuer’s stock ledger as the owner is not c ritical; the substance of petitioners’ claim to be the ‘law ful owner’ of lost, stolen or destroyed certificates is.” 121 The court then addressed ITT’s assertions regarding whether pet itioners were “lawful owners” and their claim that the resolution of that question wa s governed by Cuban law since the partnership was a Cuban en tity. In this regard, ITT argued that “the Partnership continues to exist and its present owner—presumably the Republic of Cuba pursuant to its sovereign act of seizure—and not petitioners have rights to the property at issue.” 122 Thus, ITT claimed that under Cuban law, the petitio ners were not the “lawful owne rs.” The court noted the existence of a number of factual and legal questions, including whether any compensation had been paid. If compensation had not been paid, then “our fe deral Constitution would appear to dictate that the act of seizure be accorded no effect by courts of this country.” 123 The court then observed that, “[ t]o support the assertion that under our law the Cuban government’s seizure of the Partnership could not affect the equitable ownership of the original shares , two propositions must be established,” 124 namely, (1) that the acts of a foreign government are not immune from judicial review to the e xtent that those acts purport

120 Id. at 678.
121 Id.
122 Id. 123 Id. If an exchange existed, then the Act of State Doctrine may req uire the court to regard the seizure as valid for p urposes of determini ng who owned the prop erty. However, if there was not an exchange, then the federal Cons titution would hold the seizure as ineffective in the United States.
124 Id . (emphasis added).43 to affect property outside of the foreign sovereign; and (2) th at the courts in the United States will not respect the act of confiscation without compensation o f a foreign government. The court’s discussion then focused on the effect of the Cuban gove rnment’s seizure of the partnership. The court found that the first proposition was well established —that the courts in the United States will not give “extraterritorial effect” to a conf iscatory decree of a foreign government even when it is directed at its own nationals. As t o the second proposition—that courts in this country will not respect the act of a foreign go vernment that amounts to a confiscation—the Court was guided by Zwack v. Kraus Bros. & Co. , 125 a decision of the Second Circuit Court of Appeals. As Chancellor Allen concluded , the Zwack court reflected the tendency of courts “to put technicalities to the side when dealing with the domestic consequences of foreign seizur es without just compensation.” 126 He then found that the principle that United States domestic law ought not to facilita te indirectly the seizure by a foreign government without compensation of property within the United States applied to the

125 237 F.2d 255 (2d Cir. 1956).
126 Castro , 598 A.2d at 680. In Zwack , the Hungarian government seized a Hungarian company and the petitioners were the partners of the company prior to seizu re. The respondent was a New York corporation that held a license for the company and owed it roy alties accumulated pursuant to a freeze order during years of war. The petitioners sued to coll ect the royalties, for an accounting, and for cancellation of the license. Among its defenses, the compa ny claimed that the petitioners had no standing under Hungarian law. T he court disagreed and found th at where assets within the state are concerned, technical consideration as to the manner in which th e foreign state seeks to appropriate them are not controlling. It f ound that prior t o the confiscat ion, the assets in Ne w York and those in Hungary were equitably owned by the petitioners; therefore, the Hungarian government could not directly seize those assets which had a situs in the state of t he forum. It held that, “[t]o allow it to do so indirectly through confiscation of firm ownership [would] be to give its decree extraterritorial effect and thereby emasculate the public policy of the forum ag ainst confiscation.” Zwack , 237 F.2d at 258.44 facts alleged in Castro . Accordingly, the Court of Ch ancery concluded that petitioner s in
Castro did have standing to bring th e action under Section 168. Thus , he held that, “putting aside for the moment questions o f bond, of notice to others, an d the validity of other claims— that if petitioners prove the allegations they make, they will be entitled to relief under Section
168.” 127 Further, the court commented that it had jurisdiction over the matter even if Section 168 did not apply. It recogni zed that the petitioners sought m andatory injunctive relief and that their action was not simply a dispute about legal title. Rather, the essence of petitioners’ claim was that they could “estab lish equitable title that in th e circumstances is sufficient to qualify them as ‘owners’ or ‘lawfu l owners’ under Section 168,” and that, “[t]his classically is a matter for a court of equity.” 128 We conclude that in order to pursue a claim under Section 168, a claimant should be able to assert that she was the registered or beneficial owner of the shares before the shares were lost, stolen or destroyed . Differently stated, for Sectio n 168 purposes, one cannot lose a share, or have it be stolen or destroyed, if she did not some how own the share to begin with. When ownership is the issue at hand, as it is here, othe r mechanisms provide the claimant a remedy. Castro is not inconsistent with that proposition. The petitioners the re were not seeking to litigate a di spute about whether they were partners in the entity that

127 Castro , 598 A.2d at 680. The Cha ncellor rejected I TT’s assertion tha t the Republic of Cuba was an indispensable part y but ordered that a mechanism, including publication of notice in Havana and Miami, be devised so that third persons claiming any rights to the original shares might be given notice and an opportunity to be heard.
128 Id. at 677 n.4.45 owned the ITT shares. That was undisputed. Rather, Chancellor Allen saw that there was a question of whether the partnersh ip should be deemed dissolved as a result of the seizure and that, by operation of law, the petitioners were the owners of t he partnership’s assets ( e.g. , the ITT stock). Moreover, it is evident that the Court of Chancery in Castro was also taking into account the broader public polic y concerns regarding the seizur e by a foreign government of U.S. assets without compensation. Appellants here, by contrast , are seeking to establish, through this litigation, their i nitial ownership interests in A HMR under a series of agreements—the legal effect of wh ich is hotly disputed. Then, purporting to act on behalf of AHMR, they seek an order decl aring AHMR to be the rightful o wner of all outstanding shares of Allomet stock and to have Allomet cancel all outstand ing stock and reissue stock in the name of AHMR. The stock is clearly not lost, stolen or destroyed. Rather, it is in a vault in Austria pending resoluti on of the underlying ownership issues arising from this failed joint venture and the va rious web of agreements. Accord ingly, we affirm the Court of Chancery’s dismissal of Appellants’ Section 168 claim.
2. The Section 115 Issue is Moot Appellants contend that the Cour t of Chancery overlooked the p ublic policy embedded in Section 115. The C ourt of Chancery held that “Sect ion 115 places limitations on the scope of forum selection provisions that Delaware corpor ations may place in their governing documents; it does not reach other contracts between the corporation’s46 constituents.” 129 Further, it held that, “[s]tock holders can expressly waive De laware venue in a contract between stockholder s and the corporation,” and th at is “precisely what the parties did.” 130 Appellants assert that if the Court of Chancery’s holding on Section 115 is allowed to stand, the intent of the General Assembly would be f rustrated. That is because, according to Appellants, Delaware corporations could simply eli minate Delaware as a choice of forum with mandatory forum s election clauses to allow courts in states outside of Delaware to resolve disputes ove r stock issuance, fiduciary dut y claims against Delaware officers and directors, and othe r statutorily def ined “internal corporate claims.” We hold that Appellants’ argumen ts pertaining to the potential impact of
8 Del. C. § 115 are now moot. If the Forum Clause were mandatory, we wo uld need to resolve Appellants’ contention that the provision in this insta nce would undermine the policy underlying Section 115. But because we rule that the Forum Cla use is permissive, we need not address these arguments and decline to render an opinion th at would be purely advisory. 131
IV. CONCLUSION For the foregoing reasons, we AFFIRM in part, REVERSE in part, and REMAND this matter to the Court of Cha ncery for further proceedings co nsistent with this opinion.

129 Opinion , 2019 WL 2236844, at *10.
130 Id. 131 See Stroud v. Milliken Enters., Inc. , 552 A.2d 476, 480 (D el. 1989) (“The law is well settled that our courts will not lend themselves ‘to decide cases which have become moot, or to render advisory opinions.’” (citation omitted)).