TEN

Introduction

1. Drafting is an art form which requires precision, practice and preferably access to a large bank of precedents to assist in tailoring what is required to the circumstances and by the parties the subject of an agreement.

2. Jurisdictional considerations throw up their own particular challenges for the drafter which broadly covers two aspects, these being:

3. choice of law; and

4. choice of forum.

5. As the selection of law to apply could result in different outcomes for the parties and selection of forum could result in different procedures or protocols for management of disputes being available these are important issues for which forethought is required.

6. In this paper when I refer to jurisdictional clauses I will be referencing both choice of law and choice of forum clauses.

7. A poorly selected or drafted jurisdiction clause can lead to the expenditure of considerable money by the parties and result in additional time and effort being required to resolve a dispute between the parties.

8. This paper is intended to provide:

9. a general summary of the law applied by Australian courts when asked to rule on the enforceability of jurisdiction clauses including discussion about the extra-territorial operation of Australian legislation as identified in some recent cases;

10. an outline of enforceability issues arising from contracts involving trans-national activity or trans-national parties including the impact of differing rules of evidence and practicalities effecting service of notices;

11. tips for negotiating and drafting jurisdiction and some specific considerations for drafters; and

12. some example clauses with a discussion of matters effecting the drafting of jurisdiction clauses.

13. This paper supplements a webinar given for Television Education Network in May 2024 and is not intended to recount all of the law and its nuances in this area.

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