Hi Course Hero,

Please see my question and answers below (screen shot), along with the Brereton J materials below.

32 The applicable principles were summarised by Giles J (as his Honour then was) in FA] General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association Ltd (1997) 41 NSWLR 117 (at 126-7): (a) Whether a jurisdiction clause is an exclusive jurisdiction clause is a question of construction of the particular contract, with such regard to the circumstances surrounding the entry into the contract as is permissible. (b) The word \"exclusive\" is not determinative, and a clause may be held to be an exclusive jurisdiction clause notwithstanding the absence of that or a similar word or phrase: as was said in Continental Bank NA vAeahos Conipania Naviera SA at 594, it would be a surrender to formalism to require a jurisdiction clause to provide in express ten'ns that the chosen court is to be the exclusive forum. (c) Although mutuality, in the sense that both parties agree to the relevant jurisdiction, has been thought to point to exclusive jurisdiction, 1 have some difficulty seeing why that should be so. Lack of mutuality is likely to tell against exclusive jurisdiction (Continental Bank NA vAeakos Compania Naviera SA), but mutuality is consistent With no more than submission to the jurisdiction. However, when taken with other matters mutuality may assist in finding a contractual intention that disputes shall be submitted only to the courts of the relevant jurisdiction: British Aerospace Pic v Dee Howard Co; Austrian Lloyd Steamship Co v Gresham Life Assurance Society Ltd. (d) Other language in the clause or the nature of the contract may point towards that contractual intention, for example \"under the jurisdiction of the English courts" and the assumed desire for certainty in Sonia Supply Co v Gatoil (USA) Inc; or the use of transitive language as in Austrian Lloyd {1997) 41 NSWLR 117 at 127 Steamship Co v Gresham Life Assurance Society, Ltd, British Aerospace Pic v Dee Howard Co and Continental Bank NA v Aeahos Compania Naviera SA. (e) If the courts of the relevant jurisdiction would have jurisdiction in the absence of the clause, that may indicate that the clause was intended to confer exclusive jurisdiction: Sohio Supply Co v Gatoil (USA) Inc; Gem Plastics Ply Ltd v Satrer Maritime (Pty) Ltd, It will not always be so, as the clause may have been intended only to put beyond doubt the existing jurisdiction (S & WBerisford PIC v New Hampshire Insurance Co), or be an unthinking inclusion. 33 In the light of the foregoing, the following conclusions may be expressed First, while absence of the word \"exclusive\" is not determinative, the distinction between an exclusive and non exclusive jurisdiction clause is sufciently well-known, and the facility of making the clause manifestly an exclusive jurisdiction clause so straightforward. that its absence is not merely neutral but tends against the clause being an exclusive jurisdiction clause. Secondly, where the courts of the selected forum would have jurisdiction in any event, that tells in favour of a clause being an exclusive jurisdiction clause; afortiori where they would be the \"natural forum\". Iliirdly, the suggested exception in respect of insurance policies is not well supported by the authorities, save that in the case of ambiguity the court will more readily incline to a construction that favours the insured. Fourthly, use of words such as \"all" or \"any" disputes, and mandatory words such as \"shall", tell in favour of a clause being an exclusive jurisdiction clause. Question 2 (4 marks) Applying the factors that Brereton J identied in ACE Insurance v Moose Enterprise' as relevant to determining whether a jurisdiction clause is exclusive or non-exclusive, are these clauses exclusive or not? (1) 'Any dispute arising from this contract shall he referred to the courts of Hong Kong.' (2] 'The parties submit to the jurisdiction of the competent courts of England (London).' (1) Brereton J pointed out four factors in determining whether a jurisdiction clause is exclusive or notl. The secondary factor - reference to Hong Kong as being the court in 'anv event', that tells in favour of the clause being an exclusive jurisdiction clause. The fourth factor is clearlyr visible in the contractual clause. For example, words such as "all\" or "any\" disputes, and mandatory words such as "shall\