THE HAGUE CHOICE OF COURT AGREEMENTS CONVENTION MOOT 2014

10 OCTOBER TO 11 OCTOBER 2014

HONG KONG

WRITTEN SUBMISSIONS FOR THE RESPONDENT

APPLICANT

RESPONDENT

PUBLIC SECTOR HEALTH AND WELL-BEING

INTERNATIONAL HEALTH RESORTS

LIMITED

LIMITED

(PSHW)

(IHR)

(A COMPANY INCORPORATED IN THE STATE OF UTOPIA)

(A COMPANY INCORPORATED IN THE STATE OF DYSTOPIA)

AL-GENE TAN QING WEI || MD NOOR E ADNAAN

I.

This Court should not grant an anti-suit injunction (ASI)

A.

The courts of Utopia do not have exclusive jurisdiction to hear the dispute

1.

The Applicant seeks to assert that Clause 10 of the Overarching Framework

Agreement (Clause 10 OFA) is an exclusive choice of court agreement under the
Hague Convention on Choice of Court Agreements (Hague Convention). However,
this cannot be the case because Clause 28B of the January 2013 Contract (Clause
28B) should override Clause 10 as the governing choice of court agreement (1).
Further, Clause 28B is an exclusive choice of court agreement under the Hague
Convention (2). In any event, Clause 10 is not an exclusive choice of court agreement
under the Hague Convention (3).

(1)

Clause 28B should override clause 10 as the governing choice of court agreement

2.

Specifically negotiated terms such as Clause 28B should take precedence over
standard terms. Standard terms are generally prepared in advance by one party or a
third person, and incorporated in an individual contract without their content being
discussed by the parties (Art. 2.1.19(2) UNIDROIT Principles). As a result,
specifically negotiated provisions in a contract should prevail over standard terms
since they are more likely to reflect the intention of the parties in the given case
(UNIDROIT Principles 2010 with Commentary).

3.

In this present case, following six months of negotiation, Clause 28B was
concluded as part of a contract for the construction and maintenance of a resort in
Haagnum (Directions at [8]). Further, Clause 28B clearly states that it would apply to
disputes arising from [the January 2013 contract]. As Clause 28B was specifically
and purposefully negotiated, and since there was no specific reference to Clause 10 in
the January 2013 contract, the Parties must have intended for Clause 28B to override
Clause 10 as the choice of court agreement that governs the January 2013 contract.

(2)

Clause 28B is an exclusive choice of court agreement under the Hague Convention

4.

Under Art. 3(b) of the Hague Convention, a choice of court agreement would be
deemed exclusive if it designates the court of one Contracting State, or one or more
specific courts of one Contracting State, unless the parties have expressly provided
otherwise.

5.

Clause 28B satisfies the requirement under Art. 3(b) of the Hague Convention as it
states that any disputes arising between the Parties will be litigated in the Commercial
Courts of Dystopia, which is a Contracting State of the Hague Convention.

6.

The Applicant might argue that the construction of Clause 28B indicates that it was
not intended as an exclusive choice of court agreement. However, the application of
the Hague Convention does not involve a strict inquiry into the construction of the
clause, unlike the common law approach in determining whether a clause is an
exclusive choice of court agreement (Ronald Brand and Paul Herrup, The 2005 Hague
Convention on Choice of Court Agreements: Commentary and Documents, New
York: Cambridge University Press, 2008). The phase [a]s much as possible would
not deny Clause 28B of its exclusivity. The Respondent submits that the plain
meaning of the phrase still clearly designates Dystopia as the chosen forum.

(3)

In any event, Clause 10 is not an exclusive choice of court agreement under the
Hague Convention

7.

Although Clause 10 OFA does designate the courts of Utopia, which is a contracting
state of the Hague Convention, the presence of Clause 28B would nullify the
designation. This is because Clause 28B designates the Commercial Court of
Dystopia, and this would amount to the Parties expressly providing otherwise to
deny Clause 10 of any exclusivity (Art 3(b) Hague Convention). Therefore, Clause 10
OFA is not an exclusive choice of court agreement under the Hague Convention.

B.

Any ambiguity should be resolved by giving effect to parties intentions under

Clause 28B

8.

The Hague Convention recognises the importance of party autonomy in international

commerce, and aims to give wide effect to choice of court clauses (Yeo Tiong Min,
Report of The Law Reform Committee on The Hague Convention on Choice of
Court Agreements 2005 (Singapore: SAL, 2013). Giving effect to party choice of
court was intended to give commercial parties greater certainty in their transaction
planning (Yeo Tiong Min, International Litigation in Asia: Will the Hague Choice of
Court Convention Make Any Difference? [2013]).

9.

Here, Clause 28B was negotiated and drafted to specifically govern disputes arising
from the January 2013 contract. An ambiguity should not deny Clause 28B of this
intended effect, as this would undermine certainty, and fly in the face of the chief
objective undergirding the Hague Convention. As such, the Utopian court is obliged
to give effect to the Parties apparent intention that all disputes arising from the
January 2013 contract should, as much as possible, be governed by Clause 28B.

C.

No good reason for Utopia to restrain Dystopia from hearing dispute

11.

An ASI is not warranted because the courts of Dystopia are not bound by any lis
pendens rule that it should decline jurisdiction if it was not the court first seized (1).
Further, even if the lis pendens rule applied, an ASI should not be granted to uphold
the rule, as it would deprive the Dystopian court of its right to determine its
jurisdiction (2). Furthermore, an ASI is not warranted because parallel proceedings
are not principally objectionable, vexatious or oppressive (3).

(1)

Dystopia is not bound by any lis pendens rule

10.

There is no overarching regime that dictates how the courts of Dystopia should
behave when it was not the court first seized. The courts of Dystopia are not bound by

any lis pendens rule. The ALI/UNIDRIOT Principles of Transnational Civil

Procedure (ALI/UNIDRIOT), which the Applicant might rely on, is merely a
guideline and not, by any means, binding on the courts of Dystopia (Ronald Brand
and Scott Jablonski, Forum Non Conveniens: History, Global Practice, and Future
Under the Hague Convention on Choice of Court Agreements, New York: Oxford
University Press, 2007).
(2)

Even if Dystopia was bound by such a rule, an ASI should not be granted as it would
deprive the Dystopian court of its right to determine its jurisdiction

11.

While the Hague Convention may be neutral as to the applicability of an ASI, it does
not mean that an ASI should be allowed (Trevor Hartley, Choice-of-Court
Agreements Under The European and International Instruments, New York: Oxford
University Press, 2013). An ASI should be prohibited because it would interfere with
judicial proceedings in Dystopia. Even though comity may allow an ASI to be granted
in the limited circumstance where a courts jurisdiction was exorbitant, proceedings in
the Dystopian court has only just commenced before PSHW applied for an ASI. It has
not had the opportunity to decide on its own jurisdiction (Directions at [14]-[16]).

12.

The Applicant might argue that since the lis pendens rule dictates that the courts of
Dystopia is obliged to decline jurisdiction, an ASI would not interfere with the
Dystopian courts jurisdiction. This position is unsustainable. Even if the lis pendens
rule applied to Dystopia, the Dystopian court still has the right to decide that it does
not have jurisdiction. It is against comity for the Utopian court to take this right away,
as it would undermine the jurisdiction of the Dystopian court (Turner v Grovit [2005]
1 AC 101).

(3)

Parallel proceedings in Dystopia is not principally objectionable, vexatious or

oppressive

13.

There should not be any objection for parallel proceedings in Dystopia to proceed
simultaneously with the proceeding in Utopia. The mere filing of a suit in one forum
does not cut off the preexisting right of an independent forum to regulate matters
subject to its prescriptive jurisdiction (Lakers Airways Ltd v Sabena Belgian World
Airlines (1984) 731 F 2d 909 (Lakers Airways)).

14.

Moreover, IHR has a right to seek recourse to justice in a forum that is convenient for
it. (Koh Kay Yew v Inno-Pacific Holdings Ltd [1997] 2 SLR(R) 148). In this case,
IHR has chosen Dystopia. While suing in Dystopia may create parallel proceedings,
the existence of parallel proceedings is merely part of the factual matrix to the
common law court in determining jurisdiction questions (Virsagi Management (S) Pte
Ltd v Welltech Construction Pte Ltd [2013] 4 SLR 1097). Only when the action of a
litigant in another forum threatens to paralyze the jurisdiction of the court so much so
that it cannot carry out its duty to provide full justice to litigants can the court
consider granting an ASI (Lakers Airways; Star Reefers Pool Inc v JFC Group Co Ltd
[2012] EWCA Civ 14).

15.

Further, to deprive IHR of its right to continue with its suit in Dystopia, PSHW must
show that the Dystopian suit was so vexatious and oppressive to PSHW that they
would have trouble arguing a case on two fronts. This is a very high standard (Adrian
Briggs, The Conflict of Laws, New York: Oxford University Press 3rd Ed, 2013).

16.

In the present case, there is no indication that PSHW would have such trouble. In fact,
given that PSHW is a corporation owned by the government of Utopia (Directions at
[3]), it should have the requisite financial muscle to argue a case in both Utopia and
Dystopia. Hence, there would be no injustice to PSHW if an ASI is not granted.