Governed by and interpreted in accordance with
|
Negotiation Anatomy™
|
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 seems fussy enough even nominating the governing law that applies to your contract — but is de rigueur in the torrid international waters in which derivatives folk ply their trade, since counterparties are usually foreigners to each other, and to mother England, so really it doesn’t go without saying what law should govern the contract. So this leads us to all kinds of tedious complication.
Say I am from Luxembourg, you from Mongolia, and we have a contract under which you will supply goods, Gobi yak milk being á la mode in the fashionable salons of Limpertsberg. How shall we govern our contractual relations?
Traditionally, the law of international commerce is English law: no doubt, a regrettable post-colonial hang-over, but we are where we are and look: the common law is pretty neat: it is consistent, predictable, and generally produces agreeable results.
So we agree to transact Yak milk under English law. This resolves that impasse in a pleasantly neutral way for now, but let us say, a few years down the track, times are tough in Allée Scheffler, and we find ourselves in a pickle. It needs some independent arbitration to sort out.
Neither of us want to pitch up in London to thrash this out, so the idea is to have a local court sort it out. And so was developed the idea of “non-exclusive jurisdiction”: English may be the governing law, but the courts of Luxembourg, or Ulan Bator — or indeed anywhere in between — can apply it.
This might strike you 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 the law of, for example, constructive trusts, when the very concept of a trust is said to be[1] unknown to continental jurists, without them at least putting some kind of Flemish spin on it. So Madame la Présidente cannot but help reading those our rusty Anglo-Saxon contortions with some silken, romance finery.
But — and this is a question of far broader application, frankly — what does it matter?. What are we supposed to do of the sitting members of le tribunal d’arrondissement puts some Frankish spin on things? How will we even know? What difference will it make?
See also
References
- ↑ Said to be. The contrat fiduciaire sounds a lot like a trust to me, readers.