Commercial agreements often contain elaborate provisions for jurisdiction over disputes which may arise, and some of these have been handed down from document to document over the course of more than a decade. But hardly any of them make a comparable attempt to draft an agreement on choice of law which will be co-terminous with the agreement on jurisdiction. This short paper asks why this should be so, and whether there is any rational justification for such failures. It concludes that there is none, and proposes that in this important area of commercial drafting some new thinking is urgently needed.

In an earlier paper,1 it was noted that the problems presented by cumulation of remedies in the conflict of laws may be ameliorated by a well-drafted choice of law agreement but it was also observed in passing that this was a rarity in practice. It is now timely to make a brief return to this issue. Anyone leafing through the last 20 years of Lloyd’s Reports will be struck by the number of reported jurisdictional disputes which turn on the proper construction and effect of an agreement on choice of court. It is hard to believe that any other single contractual provision has generated such intensity of concern in so many recent cases. Yet the issue is usually only one of construction: is the clause exclusive, non-exclusive, one-sidedly-exclusive? Have the parties agreed to submit their disputes, or to submit themselves,2 to the nominated court? What is its material scope: does it extend beyond claims which are strictly contractual in nature, et cetera ? All boil down to a question of construction; and disputes as to construction are indications that the draftsmanship was not as skilled and precise as it should have been. There certainly are some elaborate jurisdiction agreements in the market, though being wordy does not guarantee quality. In banking loan documentation, for example, a common form of jurisdiction clause has been in use for well over a decade;3 and, even though its deficiencies have become more apparent with the passing of years and the judicial development of the law, there appears to be a tacit agreement among players in the field not to break ranks and redraft it, for fear of suggesting that it has been in need of refurbishment for a very long time. Yet, even if shortcomings can be pointed out, it is at

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