Revisiting Jurisdiction Provisions

A reader pointed out this post by John Coyle on the Transnational Litigation Blog. It concerns litigation over this provision:

This agreement is governed by the laws of Ireland. If we bring an action to enforce this agreement, we will bring it in the jurisdiction where you have your headquarters. If you bring an action to enforce this agreement, you will bring it in Ireland.

One of the issues was whether this provision covers claims other than claims under the contract. Here’s what John says:

There are several methods by which Microsoft, as the drafter of the agreement, could have made clear that the clause was intended to cover claims other than breach of contract. It could have stated, for example, that any claims “relating to” or “arising in connection with” the agreement had to be litigated in Ireland.

I’m on record (here) as being a fan of John Coyle, but of the several methods, I wouldn’t opt for the one John suggests. If you want to make it clear that a jurisdiction provision covers all claims, not just claims under the contract, say all claims arising out of this agreement or Acme’s refurbishing of the Widgets (or whatever the subject matter of the contract happens to be). Yes, there’s caselaw supporting a distinction between arising out of and relating to, but that’s just so much legalistic hairsplitting. I discuss that in this 2009 blog post. (What’s in the fifth edition of MSCD is the current version.)

While we’re on the subject, you might find useful my four blog posts on jurisdiction provisions: Part 1, Part 2, Part 3, and Part 4.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

3 thoughts on “Revisiting Jurisdiction Provisions”

  1. A popular formulation is “all claims or disputes (including non-contractual disputes)” but I can’t see that dispute arises without a claim or that “all claims” isn’t sufficient enough to cover non-contractual claims.

  2. I have been lured off topic by “This agreement is governed by the laws of Ireland.”

    Annoyed by the needless passive, I revised to “The laws of Ireland govern this agreement.” Then the term “govern” troubled me. Dictionary definitions of “govern” didn’t help. Category of contract language seems to be “policy.” No help there.

    Best shot at revision to eliminate “govern”: “This agreement has the meaning it would have under the laws of Ireland.”

    This formula no more tells a court what to do that a definition does, so it avoids the dangers of formulas along the lines of “Any tribunal interpreting or enforcing this agreement shall do so under the laws of Ireland.”


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