Drafting and not paying attention

IPKat reveals the case of Sawyer v Atari Interactive which discusses a number of interesting jurisdictional issues. Sawyer started an action in the UK against Atari who in turn applied to have it transferred to the US as the forum conveniens, basing their application on the grounds of stuff.

They lost, but it struck me from the report that this very expensive hearing could easily have been avoided by Sawyer had his lawyer been awake when drafting the contract’s jurisdiction clause. One frequently sees such a clause expressed thusly;

19 Law
This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English Courts.

one also sees, woefully often, a variant along the lines of:

19 Law
This Agreement shall be governed by and construed in accordance with the laws of England and Wales.

It transpires the Sawyer jurisdiction clause was of the latter variety. Had it been the former this hearing could have been entirely avoided since there would have been no serious grounds for arguing that the US was a contractual forum.

Sometimes clients get what their lawyers deserve.