Jurisdiction may be the most important factor organizations should take into consideration when offshoring. Some countries do not recognize certain U.S. legal doctrines, such as confidentiality agreements, and without proper jurisdiction an organization may be unable to enforce its contract with a vendor.
When selecting an offshore country, organizations should consider whether the country permits a choice of law provision which would allow courts to apply U.S. law. If the country permits choice of law provisions, the provision should be well defined in the contract so that there is no ambiguity. Organizations should also consider working with counsel in the offshore country to assist with legal intricacies, even if a United States choice of law provision is permissible.
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