Governing Law and Jurisdiction - GMSLA Provision

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2010 Global Master Securities Lending Agreement
A Jolly Contrarian owner’s manual

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GMSLA

Clause 23 in a Nutshell
Use at your own risk, campers!

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Full text of Clause 23


23. Governing Law and Jurisdiction
23.1 This Agreement and any non-contractual obligations arising out of or in connection with this Agreement shall be governed by, and shall be construed in accordance with, English law.
23.2 The courts of England have exclusive jurisdiction to hear and decide any suit, action or proceedings, and to settle any disputes or any non-contractual obligation which may arise out of or in connection with this Agreement (respectively, Proceedings and Disputes) and, for these purposes, each Party irrevocably submits to the jurisdiction of the courts of England.
23.3 Each Party irrevocably waives any objection which it might at any time have to the courts of England being nominated as the forum to hear and decide any Proceedings and to settle any Disputes and agrees not to claim that the courts of England are not a convenient or appropriate forum.
23.4 Each Party hereby respectively appoints the person identified in paragraph 7 of the Schedule pertaining to the relevant Party as its agent to receive on its behalf service of process in the courts of England. If such an agent ceases to be an agent of a Party, the relevant Party shall promptly appoint, and notify the other Party of the identity of its new agent in England.
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Related agreements and comparisons

Related agreements: Click here for the same clause in the 2018 Pledge GMSLA
Related agreements: Click here for the same clause in the 1995 OSLA
Comparison: Template:Gmsladiff 23
Comparison: Template:Osladiff 23

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Content and comparisons

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Summary

It is by default governed by English law (though in at least one version (namely the South African Schedule) you can convert that to a different governing law). This is a reflection of the oft-denied reality that commercial law is, to most intents and purposes, pretty much the same all over the developed world, and in much of the non-developed world, and the pathetic behavioural plea from a legal eagle that “I could not possibly opine on that because I am not qualified attorney in that jurisdiction” is basically feeble-mindedness.

This is an exclusive jurisdiction clause: cf the ISDA Master Agreement which by dint of Section 13 has a non-exclusive jurisdiction clause.

If you’ve ever despaired at the pernicketiness of governing law clauses such as this:—

This agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.

Then you have the Rome II EU Regulation[1] to blame. Enacted in 2007, it applies to all EU Member States[2] and is designed to harmonise the “conflict of laws” rules across Member States[3] dealing with with non-contractual disputes.

Non-contractual obligations

In this context breach of “non-contractual obligations” includes actions based on tort (e.g. negligence), competition law and statutory duty. But, fabulously, not those arising out of the negotiable nature of bills of exchange, cheques and promissory notes and other negotiable instruments, or company law or defamation — though it’s hard to see how you could have a non-contractual obligation to defame someone.

But the main thing is to ensure any concurrent claims in contract and tort can be — must be — decided in the same forum. This is mostly interesting where the parties to a contract are in different jurisdictions, and each will prefer their own jurisdiction to hear a non-contractual dispute. But even there, frankly, a concurrent claim in tort would only be relevant in most cases to builders.

Of course, the sensible thing would be to expressly exclude tort claims under the contract. But for those not prescient enough to do that, there’s always this magic incantation.
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See also

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References