Governed by and interpreted in accordance with
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Negotiation Anatomy™
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Another one for the great paranoid wellspring from which emerges the advocate’s nature.
This agreement shall be governed by and interpreted in accordance with the laws of England and Wales and their territorial waters.
It is fussy enough even nominating the governing law that applies to your contract — though de rigueur in the torrid international waters in which we derivatives folk ply our trade, since our counterparties are usually foreigners to each other so really it doesn’t go without saying — and this leads us to all kinds of tedious complication.
Say I am from Luxembourg, you from Mongolia, and we have a supply contract — Gobi yak milk being quite the thing in the fashionable salons of Limpertsberg — how shall we govern our contractual relations? Traditionally, the law of international trade and commerce is the common law of England and Wales. This resolves that impasse in a pleasantly neutral way, but now let us say, a few years down the track, times are tough in Allée Scheffler, and we find ourselves in a contractual tangle that needs some independent arbitration to sort out. Neither of us want to be pitching up the West End of London and thrash the matter out before the Queen’s Bench, now, do we? And so was developed the idea of “non-exclusive jurisdiction”: The governing law may be English, but the courts of Luxembourg, or Ulan Bator — or indeed anywhere in between — can apply it.
This strikes me as rather wishful, and it rather points up the need for the grim confection with which we are currently concerned. For it is hard enough to expect le Cour Supérieur de Justice to properly apply rules of remoteness of damage at all, without putting some kind of Flemish spin on them.