The Harvard Law School Forum on Corporate Governance and Financial Regulation from around the country addressing the enforceability of exclusive forum clauses in corporate bylaws. Such clauses are designed to limit forum shopping by shareholders and other potential litigants by mandating that certain disputes (including derivative actions, suits alleging breach of fiduciary duty by corporate directors, officers, or other agents, statutory actions arising from the Delaware General Corporate law, and other disputes involving the corporation’s internal affairs) be brought in specific jurisdictions. The enforceability of such clauses was long a subject of academic debate and dispute. However, in 2013 the Delaware Court of Chancery upheld their enforceability in Boilermakers Local 154 Ret. Fund v. Chevron Corp.
The post provides some useful insight into what language will likely be found acceptable by courts of competent jurisdiction:
While the particular language should be crafted by a company in consultation with counsel and in light of the factors above, the following sample language would be consistent with what other companies have adopted, and what the courts have upheld:
Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation arising pursuant to any provision of the Delaware General Corporation Law or the Certificate of Incorporation or these By-Laws (in each case, as they may be amended from time to time), or (iv) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation governed by the internal affairs doctrine shall be a state court located within the State of Delaware (or, if no state court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware).
The post can be found here in its entirety.
 73 A.3d 934 (Del. Ch. 2013)