Drafting A Jurisdiction Clause

Introduction

The following drafted jurisdiction clause will be used in favor of the Australia courts, in which case, the parties (X Co Ltd and Y Pte Ltd) will be provided with sufficient advice and in an instance where their preferences are inappropriate, they will be advised accordingly. This is as provided below:

Submission to the Australian courts before a dispute arises

Clearly, this agreement and also the sub-clauses form a distinct agreement from other agreements, which shall be governed in accordance with the laws of the Australian courts. This agreement, with an exception of the sub-clauses ((b) and (c)) will also be construed according to the laws of a jurisdiction state. Sub-clauses (b) and (c) form a distinct agreement from the rest of the agreements wholly. Clearly, the governing law bestowed in this agreement, the sub clauses (b) and (c) shall all be governed by and also construed in accordance with the law of the Australian courts (Landeo & Spier, 2014).

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Both X and Y have had the agreement to submit to the jurisdiction of the Australian courts, any dispute, claim or even any form of controversy that may arise in any way, that is in line with the agreement, which includes any (1) contractual, pre-contractual or even the non-contractual rights, liabilities or obligations and (2) the existence, termination, or even the enforceability of the agreement

In an instance where the Australian court proves that the body lacks the mandated jurisdiction to hear and put into trial the entire or part of the dispute. Secondly, when the court declines to make an assumption over the entire or part of the dispute, then both X and Y should make a transfer suit, proceedings, or even action to the Australian high court. This proved to be necessary, for necessary action to be taken when need be.

With respect to the provided proceeding that have been brought to the Australian courts, both X and Y irrevocably:

Both X and Y should carry out and take the necessary steps towards carrying out any form of judgement or order from the Australian courts without undue delay; Waives any form of recourse to any tribunal outside Australia, in order to challenge any judgement or order of the Australian court or to recognize or enforce any judgement or order, in as much as recourse may be validly waived and finally; Both X and Y agree that any form of judgement or order as mandated by the Australian court may only be recognized and even enforced in other jurisdictions outside Australia. As such, they need to agree to make a submission to the Jurisdiction of those courts or tribunals for the purpose of recognition or enforcement (Drahozal & Ware, 2010).

Submission to the Australian jurisdiction after a dispute arises

It is clear that this agreement will be governed and also construed according to the law of the Australian courts (McGill, 2010).

In an instance where a claim or any form of controversy has arisen between X and Y, then each party are obligated to submit the dispute to the Australian court, which had been agreed upon to be the exclusive jurisdiction

In an instance and to an extent where the Australian court proves that it’s body lacks either the jurisdiction to be able to hear and put into trial the entire or part of the dispute. Secondly, when it purposes to decline to assume the jurisdiction of the dispute, then both X and Y should purpose to transfer the suit, action, or proceedings that relate to the Australian courts to the Australian High Court (McKendrick, 2014).

With respect to the provided proceedings that are brought before the Australian court, both X and Y should:

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Agree to carry out the necessary steps in carrying out any judgement or order as provided by the Australian court without undue delay; Waives any form or recourse to any tribunal outside Australia, in order to challenge any judgement or order of the Australian court or recognize and enforce any form of judgement or order, in as much as the recourse can be waived validly and finally; Each party should agree that any order or even judgment as provided by the Australian court should be recognized and enforced in tribunals outside Australia. Therefore, they should agree to submit their jurisdiction for the purpose of recognition and enforcement (Frankfurter, 2018).

Notes for the in-house lawyers of X Co

It is significant to note that X Co Ltd in Australia and Y Pte Ltd in Singapore have decided to get into a contractual agreement, where X Co Ltd imports electronic components from companies in South East Asia, whereas Y Pte Ltd deals in manufacturing and exporting electronic components. In this regard, both X and Y have decided to engage in a contract, in which Y will be selling its products to X. It is clear that the two parties have settled most of the agreements although they are still open to negotiations. They have agreed to include a jurisdiction clause, which favors the Australian courts. The jurisdiction clause includes a submission to the Australian courts before a dispute arises, and a submission to the Australian jurisdiction after a dispute arises. This is important as it enforces convenience, especially if one party opts to sue another; in case of a breach of contract. Secondly, the jurisdiction clause provides an opportunity for a party to opt for a preferred judicial system. It is evident that civil litigation systems do vary widely and it is notable that others are preferable to others. Thirdly, a jurisdiction clause is important for enforcement of the contractual agreement. Overall, both X and Y will find it much easier to engage into their business, owing to the fact that the contractual agreement are in accordance with specific laws, which have consequences in case of a breach (Mitchell, 2018).

References

  • Drahozal, C. R., & Ware, S. J. (2010). Why do businesses use (or not use) arbitration clauses. Ohio St. J. on Disp. Resol., 25, 433.
  • Frankfurter, F. (2018). The Commerce Clause Under Marshall, Taney, and Waite. UNC Press Books.
  • Landeo, C. M., & Spier, K. E. (2014). Irreconcilable differences: Judicial resolution of business deadlock. The University of Chicago Law Review, 81(1), 203-227.
  • McGill, S. (2010). Consumer Arbitration Clause Enforcement: A Balanced Legislative Response. American Business Law Journal, 47(3), 361-413.
  • McKendrick, E. (2014). Contract law: text, cases, and materials. Oxford University Press (UK). Mitchell, C. (2018). Interpretation of contracts. Routledge-Cavendish.

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