Fun with Terms of Service, from John Coyle and the Transnational Litigation Blog

Unbeknownst to me, in 2023, the University of North Carolina’s John Coyle (right), declared June 12th to be Microsoft Contract Day. Every year, on that day, Professor Coyle revisits Microsoft’s dispute resolution provisions on the Transnational Litigation Blog and highlights their flaws, inconsistencies, and moments of incoherence. His 2023 post reviewed the “Jurisdiction and Governing Law” language that Microsoft and its subsidiaries used in 109 countries and declared them incoherent. He revisited the language in 2024 and found it largely unchanged.

In this year’s post, Professor Coyle first congratulates Microsoft on one fix to its terms. The 2023 version of its forum selection clause, Professor Coyle had pointed out, was not a forum selection clause, because it identified no adjudicatory body.  The 2025 version makes clear that the courts of the relevant country have exclusive jurisdiction. 

Professor Coyle then lists four other problems that he identified but that the 2025 revision did not address. But it gets worse. Microsoft’s language varies in thirteen countries. Professor Coyle actually took the trouble to compare the language in all of these countries, and he pinpoints the confusion that results from the inconsistent language. Some highlights:

• The language for Myanmar features what seems to be a botched cut-and-paste job, with a header plunked down in the middle of a paragraph, and it calls for both arbitration in Singapore and litigation in Washington State;
• In Puerto Rico somehow the laws of both Washington State an Puerto Rico are to govern;
• South African transactions are to be somehow governed by two different choice-of-law rules.

At the time Professor Coyle wrote his 2025 post, Microsoft had a $3 trillion + market capitalization. This past week first brought some very good news for the company, as its market capitalization grew past $4 trillion, but then there were the job numbers and we are back below $4 trillion. Either way, some of that money should be used to hire Professor Coyle as a consultant so that he can clean up the company’s dispute resolution provisions.