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SKELETON OF ARGUMENTS IN BEHALF OF DEFENDANT INTERNATIONAL

HEALTH RESORTS LIMITED

INTRODUCTION

This is skeleton of the arguments International Health Resorts (IHR) submit to the

High Court of the State of Utopia. IHR moves to stop the anti-suit injunction filed by the

plaintiff Public Health Sector and Well-Being Limited (PSHW) and for the Utopian Court to

recognize the jurisdiction of Dystopia regarding the case in controversy. Submission of this

skeleton does not preclude the claim of jurisdiction on the part of IHR.

First, IHR submits that specific contract (SC) Clause 28B is an exclusive choice of

court agreement within the standard of the Hague Choice of Court Convention (HCCA) and

further, Overarching Framework Agreement (OFA) Clause 10 is not an exclusive choice of

court agreement because it is just a clause incorporated by reference, while the Specific

Contract Clause 28B (SC 28B) was within the written agreement itself. On its proper

construction, there is case law that the written agreement should supersede any clause

incorporated by reference. Further, even if both are concurrently valid exclusive choice of

court agreements, SC Clause 28B should be given priority jurisdiction because of the rule

that the commercial centre of the agreement must be the exclusive choice of court agreement.

Alternatively, IHR submits that an anti-suit injunction should not be granted because PSHW

has not proven that Dystopia failed the test of forum non conveniens. And lastly, the term “as

much as possible” should be read in accord with the intent of the parties.

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ARGUMENTS

I. On proper construction, Clause 28B is the exclusive choice of court agreement.

A. Clause 28B is an exclusive choice of Court agreement according to the standards of

the Hague Convention itself.

Hartley and Dagauchi, in their explanatory report on the HCCA, explained that

Article 3 of the HCCA expresses that an “exclusive choice of court agreement means an

agreement concluded by two or more parties for the purpose of having it decided by a

designated choice of court to the exclusion of others.” In the same report, they mention that

the choice of court agreement “must refer either to the courts of a Contracting State in

general, or to one or more specific courts in one Contracting State”. Hence, it is not

necessary that the contract explicitly exclude jurisdiction of other states in order for an

exclusive choice of court agreement to prosper. Applying this to the case at hand, where

clause SC 28B states that “as much as possible” disputes arising from this contract is to be

brought before the Commercial Court of Dystopia, even though it did not explicitly exclude

the courts of Haagnum or Utopia, it is still an exclusive choice agreement in accordance to

Article 3 (a) of the HCCA as it adequately designates the court of Dystopia as the venue.

There is also an opposite view that, “As much as possible,” is an impotent interpretation that

is merely suggestive. However, the presumption should be mandatory because Article 3(b) of

the HCCA stipulates that a choice of court agreement shall be deemed to be exclusive unless

the parties have expressly provided otherwise. Therefore, absent showing of an express

provision, Clause 28B is exclusive

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B. Written agreement prevails over clauses referred to in other agreements.

There is no mention in the agreed facts that the specific contract (SC) attached the

OFA by express stipulation. Clause 10 is under the General Terms and Conditions (GTCs)

which was only referred to by PSHW as part of the OFA while, specific contract Clause 28B

was a written agreement for the purpose of the resort project in Haagnum. Therefore,

assuming that both contracts are valid and subsisting the clauses of the written agreement

should prevail. If clauses incorporated by reference into a written agreement are in conflict

with the written agreement itself, the written agreement will have to prevail over clauses

referred to in other agreements (Med Marine v Castillo Schiffahrts).

II. Even if both choice of court clauses are concurrently valid, SC Clause 28B must be

regarded as an exclusive choice of court agreement overriding Clause 10.

A. A complete valid written contract supersedes all prior negotiations

Assuming that OFA Clause 10, which was signed in 2010, overrides clause 28B of

the special contract, this implies that PSHW is conceding that both contracts contemplate the

same subject matter. Specific contract Clause 28B overrides OFA Clause 10 because of the

rule that a complete, valid, written contract merges and supersedes all prior and

contemporaneous negotiations and agreements dealing with the same subject matter

(Courtois v. Millard).

The defendants submit that clause 28B, which grants jurisdiction to Dystopia,

supersedes the jurisdiction provided for in OFA Clause 10 since (1) the special contract was

signed later compared to the OFA, (2) both contracts have the same subject matter, and (3)

both contracts are valid and enforceable.

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B. Jurisdiction at the commercial center prevails if there are numerous jurisdiction

agreements

The parties must be presumed to be acting commercially when there are numerous

jurisdiction agreements, which may overlap—not intending similar claims to be subjected to

inconsistent jurisdiction clauses and the event that a complex transaction has been entered

into, jurisdiction clauses in the commercial centre of the transaction would be controlling.

(UBS AG & UBS Securities Llc v HSH Nordbank AG). The resort, which is the subject of

the transaction, is located in Haagnum. This resort in Haagnum is the the subject of the

specific contract containing Clause 28B. The special contract contained SC Clause 28B

which state that “As much as possible” Dystopia will have jurisdiction. Hence, SC Clause

28B is within the contract used for the commercial centre of transaction which is Haagnum.

III. Assuming that the HCCA is inapplicable, the anti-suit injunction fails to prove that

Dystopia failed to apply the forum non conveniens test properly

An anti-suit injunction being an aggressive remedy contravenes the principle of

comity. Given the intrusive character, as a general rule, counsel must first seek a stay or

dismissal in that court before the domestic court can proceed in entertaining the application

for the injunction (Amchem Products Inc. v. British Columbia) Therefore, an anti-suit

injunction would only be granted where a foreign court fails to apply the forum non

conveniens test properly and injustice results. However, Dystopia applied the forum non

conveniens test properly because SC 28B should be understood as the exclusive choice of

court agreement by virtue of it being the choice of court of the contract pertaining directly to

the commercial centre of the transaction.

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IV. The intention of the parties in clause 28B of the special contract prevails.

The word “shall” is an obligatory term, and the phrase “as much as possible” means

“best efforts” (Kroboth v. Brent) and “as much as possible” requires that PSHW pursue all

reasonable methods. Further, “commercially feasible efforts” is synonymous with

“commercially reasonable efforts” (Atcor ltd v Continental Energy Marketing) Hence, our

submission is that the implications of the term “as much as possible” are synonymous with

“best efforts” because there is a strong manifestation of preference with regard to the courts

of Dystopia. Had the parties intended otherwise, they would have presumably used “may be

tried in the courts of Dystopia,” instead of “as much as possible”.

PSHW has failed to show best efforts to preserve the exclusive choice of court in

Dystopia. PSHW commenced proceedings against IHR in the courts of Utopia as a first resort

as shown in agreed facts paragraph 14. Had PSHW showed best efforts, they would have first

attempted to resolve the dispute outside court proceedings, which they did not do. Second,

they could have moved for a stay order in the courts of Dystopia instead of immediately

proceeding with anti-suit injunction. Therefore, should your Court find merit in the obligation

of PSHW to show best- or even reasonable efforts, denying the anti-suit injunction would be

necessary in order for PSHW to fulfill the said obligation.

It is with the above-mentioned submissions that we respectfully ask the Court to deny

the anti-suit injunction filed by PHSW in favor of the proceedings in Dystopia.

Counsels:

Karla Rose Gutierrez

Julia Pineda

Brian Chuahiock