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RENMIN UNIVERSITY OF CHINA

IN THE HIGH COURT OF THE STATE OF UTOPIA


COURT OF FIRST INSTANCE
COMMERCIAL CASE NO.1 OF 2014
PUBLIC SECTOR HEALTH AND WELL-BEING LIMITED
V.
INTERNATIONAL HEALTH RESORTS LIMITED





DEFENDANT




PREPARED BY
JIALING MA
DAN LI


ISSUE ONE: CLAUSE 28(B) IS AN EXCLUSIVE AGREEMENT, AND
CLAUSE 10 IS AN OPTIONAL AGREEMENT
a. Clause 28(B) is an exclusive agreement which meets all five requirements of
Article 3 in Convention on Choice of Court Agreements.
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First, Clause 28(B) is an agreement between PSWH and my client. Secondly, it is
agreed that Clause 28(B) is concluded or documented in writing; Thirdly,
Clause 28(B) designates the Commercial Court of Dystopia, which is one specific
court in one State. Fourthly, the designated court is in Dystopia and it is a Contracting
State to the Convention. Fifthly, Clause 28(B) is for the purpose of deciding disputes
which has arisen or may arise in connection with a particular legal relationship. To
constitute a particular legal relationship requires certain subjects and certain objects.
There is no doubt that subjects in January 2013 contract, my client IHR and PSHW,
are clear. And the object of this contract, which is IHR should construct and
subsequently maintain a health resort and PSWH should complete the payment, is
obvious, too. This is a rather clear and specific legal relationship.
b. Clause 10 of the Overarching Framework Agreement should not be
considered as an exclusive agreement of court choice.
First, Clause 10 does not meet the first requirement of Article 3 in the Convention.
In 2010, my client and PSHW signed Overarching Framework Agreement (OFA),
which contained a reference to PSWHs General Terms and Conditions (GTCs). The
GTCs include clause 10 stating that: The parties agree to litigate any disputes arising

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Explanatory Report by Trevor Hartley & Masato Dogauchi.
between them in courts of Utopia. Although provided in Clause 1 that the Terms and
Conditions govern all dealings between the parties, GTCs is an internal document
limited to PSHW because my client did not sign it. The Oxford Dictionary of Law
defines incorporation by reference as reference to named contract terms. Only
when the specific terms and conditions in GTCs are clearly identified in contracts can
they have effect. The claim that Clause 10, the court choice term, is identified in OFA
is not supported by facts. My client did not have the intention and expression to
receive Clause 10 in GTCs as an agreement. Thus, it cannot constitute an agreement.
Secondly, Clause 10 does not meet the fifth requirement of Article 3 in
Convention. According to the definition of court agreement and how to make it an
effective agreement which can cover the issues raised between the parties. One of the
connotation of agreement in the choice of court involved in the dispute should be
specific legal relationship between the parties. As mentioned above, a specific legal
relationship consists of specific subjects and specific objects. However, whether
GTCs or OFA generally provide terms for long-standing relationship between two
parties without specifically referring to one project. The legal relationship Clause 10
connected with is not particular.
ISSUE TWO: IF BOTH CLAUSES ARE EXCLUSIVE AGREEMENTS,
CLAUSE 28 OVERRIDES CLAUSE 10
After OFA was signed by my client and PSWH, they began to make specific
contracts in relation to individual projects. Some of these specific contracts have
incorporated the OFA by express reference; others do not. Thus, OFA is not an
agreement overriding all the specific contracts after it. For contracts that have referred
to it, OFA can be effective and govern specific contracts related to specific projects.
But the January 2013 contract has not incorporated OFA by expressing reference.
There is no doubt that OFA does not override this contract.
The Unidroit Principles of International Commercial Contracts 2010(PICC)
provides in Article 2.1.19(2) that: Standard terms are provisions which are prepared
in advance for general and repeated use by one party and which are actually used
without negotiation with the other party. It can be seen from the facts that GTCs are
internal document of PSHW. PSHW routinely uses these GTCs for its business
contracts. So even Clause 10 are involved in OFA as a reference, this clause is
prepared in advance by PSHW. And obviously there is no negotiation when PSHW try
to apply OFA to this project. So Clause 10 in GTCs can be regarded as a standard
term in this case. In contrast, the January 2013 contract, including Clause 28, has been
reached after six months of negotiations. According to Article 2.1.21: In case of
conflict between a standard term and a term which is not a standard term the latter
prevails, Clause 28(B) should override Clause 10. When the parties specifically
negotiate and agree on particular provisions, such provisions are more likely to reflect
the intention of the parties in the certain case. Therefore, it is reasonable that such
provisions shall prevail over conflicting standard terms.
Alternatively, the January 2013 contract is a later and more specific agreement
compared to OFA. PICC provides in comment of Article 4.4 that provisions of a
specific character prevail over provisions laying down more general rules when
interpreting terms in contracts without hierarchy. And the principle of autonomy of
will is a universal and important principle in contract law. The principle allows parties
to change their will with consensus. Parties shall comply with the latest contract
between them. In light of two reasons above, January 2013 contract overrides OFA.
ISSUE THREE: IF THE CHOI CE OF COURT AGREEMENTS CONVENTI ON
IS INAPPLICABLE FOR WHATEVER REASON, THERE IS NO GOOD
REASON FOR THE UTOPIAN COURT TO RESTRAIN MY CLIENT FROM
PROCEEDING WITH ITS CLAIM IN DYSTOPIA.
Anti-suit injunction is a concept embedded in the system of equity jurisprudence,
which only exist in common law countries, rather than be applied worldwide. Many
jurisdictions refused to adopt anti-suit injunction. For example, Contracting parties do
not have the power to grant anti-suit injunctions under the Convention on Jurisdiction
and the Enforcement of Judgments in Civil and Commercial Matters. In Turner v.
Grovit
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, the Court stated that anti-suit injunction is incompatible with the system of
the Convention. The Convention is based on the mutual trust which the contracting
states accord to one anothers legal systems and judicial institutions. Anti-suit
injunctions restraining a party from commencing or continuing proceedings before a
foreign court undermines the latter courts jurisdiction to determine the dispute. The
Court reached the conclusion that the Convention precludes the grant of anti-suit
injunctions even where that party is acting in bad faith with a view to frustrating the
existing proceedings.

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The European Court of Justice (Full House), 2004, C-159/02.
Nations that adopt anti-suit injunctions take consideration with caution. English
courts exercise the power mainly on two basis. One is breach of contract.
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The
January 2013 contract provided in clause 28(B): As much as possible, disputes
arising from this Contract shall be settled in the Commercial Court of Dystopia.
Thus, my client have the right, according to this clause, to choose courts in Dystopia
to start a litigation. When it comes to non-contract cases, considerations of comity
and ends of justice need to be taken into account before granting the injunction
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.
Rules to contracts of this kind vary from nation to nation. It is one nations power,
which is embedded in its sovereignty, to make judgment according to law of itself.
The possibility cannot be excluded that the courts of different nations might make
contradictory judgments. Besides, no enough evidence can prove that the judgment in
Dystopia may do injustice to PSHW. It is illegitimate for the court in Utopia to
interfere with the jurisdiction of Dystopia.
CONCLUSION
My client insists that Clause 10 does not meet the requirements of exclusive
agreement of court choice in Convention on Choice of Court Agreements.
Alternatively, if the applicant insists that the Clause 10 is an exclusive choice, Clause
28 should be regarded as overrides Clause 10. However, if the Convention is
inapplicable for whatever reason, there is no good reason for the Utopian court to
restrain my client from proceeding with its claim in Dystopia.

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Lord Millet stated In the Angelic Grace[House of Lords, 1995, 1 LLR 87] that There is no good reason for
diffidence in granting an injunction to restrain foreign proceedings on the clear and simple ground that the
defendant has promised not to bring them.
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Modern Maritime Law and Risk Management, by Aleka Mandaraka Sheppard.