A reader pointed out this post by John Coyle on the Transnational Litigation Blog. It concerns litigation over this provision:
This agreement is governed by the laws of Ireland. If we bring an action to enforce this agreement, we will bring it in the jurisdiction where you have your headquarters. If you bring an action to enforce this agreement, you will bring it in Ireland.
One of the issues was whether this provision covers claims other than claims under the contract. Here’s what John says:
There are several methods by which Microsoft, as the drafter of the agreement, could have made clear that the clause was intended to cover claims other than breach of contract. It could have stated, for example, that any claims “relating to” or “arising in connection with” the agreement had to be litigated in Ireland.
I’m on record (here) as being a fan of John Coyle, but of the several methods, I wouldn’t opt for the one John suggests. If you want to make it clear that a jurisdiction provision covers all claims, not just claims under the contract, say all claims arising out of this agreement or Acme’s refurbishing of the Widgets (or whatever the subject matter of the contract happens to be). Yes, there’s caselaw supporting a distinction between arising out of and relating to, but that’s just so much legalistic hairsplitting. I discuss that in this 2009 blog post. (What’s in the fifth edition of MSCD is the current version.)
While we’re on the subject, you might find useful my four blog posts on jurisdiction provisions: Part 1, Part 2, Part 3, and Part 4.
