It is important to have a ‘jurisdiction clause’ included in a contract which ensures that when faced with a conflict, parties will succumb to an agreed jurisdiction.
The clause has numerous advantages including:
- The sense of security provided through resolving a dispute in your home state;
- A sense of familiarity with the local court system; and
- Limiting the amount of time you need to spend away from your business in order to resolve the dispute.
However it is not wise to rely on the jurisdiction clause alone in order to ensure a home field advantage.
The jurisdiction clause is one of many documents a court will consider when faced with a decision of transferring the proceedings. Whilst there is no set list of considerations a court will refer to, they will place most importance on which Court they deem is more appropriate to handle the proceedings.
Simply including a jurisdiction clause in the standard set of terms and conditions is not enough to bind a party to a certain jurisdiction, the Court will also look at:
- The exclusivity of ‘the jurisdiction clause’: that is, does the clause expressly state that a dispute will be heard in one jurisdiction to the exclusion of all others? Or merely implies a preference for one jurisdiction over the other?
- How much attention the party drew to the terms and conditions they wish to act upon
- Any relevant legal representation conducted by the parties prior to the formation of the contract
- Additionally the court will look at where it is most convenient to hold proceedings.
These are just a few of the factors a court will consider when determining which jurisdiction is most appropriate. Ultimately the court will review all factors and make a decision based on where the interests of justice lie overall.
We can draft you a set of terms and conditions or amend your existing terms and conditions to ensure that in the event of a dispute, any arbitration or mediation will be conducted in the State of Western Australia and that WA Courts will have jurisdiction in respect to any legal dispute arising from the terms and conditions.
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