“The Courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with this Trust Deed or the Bonds and accordingly any legal action or proceedings arising out of or in connection with this Trust Deed or the Bonds (‘Proceedings’) may be brought in such courts. The Company irrevocably submits to the jurisdiction of such courts and waives any objections to Proceedings in such courts on the ground of venue or on the ground that the Proceedings have been brought in an inconvenient forum. This submission is for the benefit of the Trustee and each of the Bondholders and shall not limit the right of any of them to take Proceedings in any other court of competent jurisdiction nor shall the taking of Proceedings in any one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction.”
“... would (had it been sanctioned) have involved the devolution of the rights and liabilities of GV Films in respect of the entire business of GV Films on two new companies. The trustee will refer to: (i) the proposed scheme of arrangement, and (ii) the judgment of Mrs. Justice Venkataraman dated4th December 2008 as showing what was proposed by GV Films.” (i) the proposed scheme of arrangement, and (ii) the judgment of Mrs. Justice Venkataraman dated4th December 2008 as showing what was proposed by GV Films.”
“21.01 This agreement shall be governed by and construed in accordance with English law. 21.02 Each of the borrowers ... hereby irrevocably submits to the jurisdiction of the English courts and hereby irrevocably nominate Messrs. Aegis (London) Ltd of 197 Knightsbridge, London SW7, England, to receive service of proceedings in such courts on its behalf, but the bank reserves the right to proceed under this agreement in the courts of any other country claiming or having jurisdiction in respect thereof.” 21.02 Each of the borrowers ... hereby irrevocably submits to the jurisdiction of the English courts and hereby irrevocably nominate Messrs. Aegis (London) Ltd of 197 Knightsbridge, London SW7, England, to receive service of proceedings in such courts on its behalf, but the bank reserves the right to proceed under this agreement in the courts of any other country claiming or having jurisdiction in respect thereof.” 16. The essential reasoning of the Court of Appeal in the Continental case is cited by Rix J at p.249 at A. “We have already explained why we interpret clause 21.02 in a transitive sense as involving an agreement by the defendants to submit disputes in connection with the loan facility to the jurisdiction of the English courts. That does not necessarily mean that clause 21.02 is an exclusive jurisdiction agreement. Mr. Christopher Clarke QC submits that where there is an agreement to submit disputes to the jurisdiction of a particular country, the parties are taken to have intended the chosen court’s jurisdiction to be exclusive unless there are unusual or particular circumstances which indicate otherwise ... We find it unnecessary to explore this line of authority or to express any view on Mr. Clarke’s submission. We say that because clause 21.02 (the only jurisdiction agreement that we are asked to consider) does not contain a submission to English jurisdiction simpliciter. We regard the concluding words as significant: ‘... but the bank reserves the right to proceed under this agreement in the courts of any other country claiming or having jurisdiction in respect thereof.’ The juxtaposition a submission by the appellants to the jurisdiction of the English courts and the option reserved in favour of the Bank to sue elsewhere brings into play the expressio unius exclusio alterius canon of construction. It suggests that a similar option in favour of the appellants was deliberately omitted. In our judgment the language of clause 21.02 evinces a clear intention that the appellants, but not the bank, would be obliged to submit disputes in connection with the loan facility to the English courts.” 17. Having noted the arguments advanced by the defendant, Rix J. continued at p.249 J: “The word “exclusive” was missing in Continental Bank as well and did not affect the issue. The word “may” reflects the possibility that CS Europe may at its option bring proceedings against MLC outside England. The “taking of proceedings” in the context of the final sentence can in my judgment only apply to the taking of proceedings by CS Europe; the presence of different law or jurisdiction clauses in other agreements merely serves to highlight the express wording of this clause; although the presence of an exclusive clause binding on MLC in the Purchase Agreements alone may seem odd, or at any rate incoherent, I do not feel, in the light of Continental Bank and its reasoning which lays stress on the Bank’s unilateral option, to hold otherwise than that MLC is bound by its contract to bring proceedings arising out of or in connection with the purchase of agreements exclusively in the courts of England.”
“Submission to Jurisdiction:” “Each party hereby consents to the jurisdiction of the Courts of England for any action filed by the other Party under this Agreement to resolve any dispute between the Parties and maybe [sic] enforced in England except with respect to the Protected Assets, as defined in the Implementation Agreement of the Guarantor.”
“This agreement shall be construed and interpreted pursuant to laws of England and the parties hereby consent and submit to the jurisdiction of the Courts of England in connection with any dispute arising hereunder. The parties further agree that process in any such action may be served upon either of them by registered or certified mail at the address of first above given or such other address as the party being served may from time to time have specified to the other party by previous written notice.”
“Words are an accurate tool and relatively small differences in wording will produce different contractual effects. In these clauses the parties have used neither the word exclusive nor a sentence construction which is transitive. They have used words which are apt to demonstrate an intention to agree to submit to the jurisdiction of the English Courts and not that there should be a contractual obligation not to have any recourse to any other court. This is the natural meaning of the words used. It is consistent with the surrounding circumstances and the general matrix of the contracts and in accord with the general context in which these clauses appear in the contracts.”
“In my view clause 1.9.1 does not lend itself to a transitive construction, and when taken with clause 2.6, it seems to me that it is not an exclusive clause in the sense of making it a breach of contract for either party to commence proceedings in a jurisdiction other than England.”
“To my mind, that principle ...” [reading words of a condition in the light of existing English decisions]... is essentially a principle of construction. Thus the court is trying to ascertain the intention of the parties in using the expression deployed in the contract. Where a contract has been professionally drawn, as in the case of the Institute Clauses, the draftsman is certain to have in mind decisions of the courts on earlier editions of the clause. Such decisions are part of the context or background circumstances against which the particular contract falls to be construed. If the draftsman chooses to adopt the same words as previously construed by the courts, it seems to me to be likely that, other things being equal, he intends that the words should continue to have the same meaning.”