Amalgamated Computers P/L v. Sterling Industries (Netherlands)

The written contract between Amalgamated and Sterling contains the following language:

This Agreement shall be governed by the laws of the Netherlands and any and all disputes concerning the validity, interpretation or performance hereof shall be submitted to the competent courts of The Hague.

Amalgamated has commenced proceedings against Sterling in the Federal Court of Australia (FCA). The allegations against Sterling include: misrepresentations which allegedly violate s 52 of the Trade Practices Act. The representations were said to have been made before and during the course of the Distributorship Agreement. The claims also include fraud, breach of duty of good faith, breach of contract, breach of fiduciary duty and breach of confidence, as well as unconscionable conduct under the Trade Practices Act. A substantial part of the statement of claim is founded upon breach of contract; that is, breaches of the Distributorship Agreement and breaches of the implied duty of good faith or its equivalent under Dutch Law. The claim is substantially founded upon the causes of action for misleading and deceptive conduct, fraud and misuse of confidential information as well as unconscionable conduct under the Trade Practices Act.

Sterling does not want the matter adjudicated in Australia. However, in personam jurisdiction exists under Australian law and process was properly served.

1. What step would seem most reasonable for Sterling to initiate:

A.Commence arbitration proceedings in The Hague

B.Attempt to apply cross-vesting based on the interests of justice.

C.Ignore the Australian proceedings

D.Lodge an application to dismiss the Federal Court proceedings.

E.Lodge a forum non conveniens application to stay the Federal Court proceedings.