Woy Woy International Systems ("WWIS") v. Granger (continued)

Same general situation but changed facts:

However, with investigation, the operative facts above have evolved and have changed somewhat to reflect greater knowledge (hint - please read carefully):

WWIS is a large multinational mining contractor based in Woy Woy NSW. Axel Granger is a citizen of Finland and resident of Greenland and was employed by WWIS to develop a mine in Greenland for a WWIS client. The client is unaffiliated with either WWIS or Granger and is a Swedish Corporation with its principal place of business in Stockholm. While employed by WWIS, Granger established bank accounts for hiring of local staff, contracting with local subcontractors and for the purchase of equipment and supplies.

Granger's written employment contract with WWIS provides that he is to be paid in Australian dollars and that an Australian superannuation account would be established and funded for him according to the prevailing legal rate for Australian employees. The contract further provided that Granger would have an annual performance review in Woy Woy which would be conducted by WWIS management and an independent body known as the Woy Woy All Stars. The contract specified that Granger's performance would be measured by Woy Woy best practice standards.

It now turns out that Granger appears to have seriously mismanaged the mining venture. His books and records have not been kept properly and fail to meet Australian accounting standards.

All of the accounts and payments authorised by Granger were made through financial institutions located in Copenhagen. The purported suppliers (real and possibly non-existent) dealt with by Granger were located in Greenland, Denmark, and NSW.

The legal and factual matrix in Greenland is somewhat complex. Greenland is a partially self-governing territory of the Kingdom of Denmark. While Greenland has many institutions such as banking, an airline and a University - all of these are located or headquartered in Copenhagen. Greenland has its own language - Greenlandic (an Inuit language). However most commerce and contracts are conducted in Danish and most citizens of Greenland do not speak or write English. Greenland has its own judicial system with trial and appellate courts. Final decisions of the High Court of Greenland may be reviewed by the Supreme Court of Denmark on a discretionary basis.

Greenland has its own parliament but many areas of law in Greenland are still unified with the laws of Denmark and subject to the enactments of the Danish Parliament. Greenland has the right, subject to negotiation, to take-over areas of legal responsibility from the Danish parliament. However, the legal issues present in Granger's relationship with WWIS fall exclusively within areas of law still controlled by and reserved to Danish law, including al Danish choice of law rules.

Greenland is not currently a member state of the European Union. However, it was a member state of the predecessor European Economic Community but expressly withdrew. Denmark is a member of the European Union but, like the UK, never entered into financial union and thereby retained its own local currency. Sweden is a full member of the European Union but is not a member of NATO whereas Denmark is a member state.

For purposes of the following series of questions, assume that all claims would be classified as contractual. Also, disregard the Convention for the International Sale of Goods which does not apply in any event.

Here are a series of different factual situations that add to the information you have been provided with above. Treat each question independently of the others as they may be inconsistent in some cases. Select the most correct answer from the choices provided.

16. There is a contract between WWIS and Granger that specifies that any and all disputes relating to it or matters arising from it shall be governed exclusively by the laws of NSW and the Commonwealth of Australia. If WWIS commences a proceeding against Granger in NSW Supreme Court, what would be the likely choice of law?

A.

The contract would not be governed by any law because the contract specifies Australian law and Australia is a full renvoi state. Under Australian choice of law rules, Greenland law would be the choice of law because that is the place of performance. But, since this is an area where Greenland does not have its own law, there would not be any law selected and the claims would be dismissed.

B.

NSW and Australian law as there is an express choice of law clause; the dispute appears to fall within the scope of the contract and the choice of law has a reasonable relationship to the parties or the subject matter of the contract.

C.

The contract would be governed by Danish law because the Australian forum would apply a choice of law test focusing on the place where the contract has it closest and most real connection.

D.

Because Australia is a renvoi country after selecting Danish law, the Court would apply Danish choice of law rules which under Rome I would be the place where the service provider (Granger) has his habitual place of residence (Greenland) which would result in Danish law being applied.

The contract between WWIS and Granger specifies that any and all disputes relating to it or matters arising from it shall be resolved exclusively in the state or federal courts in Sydney NSW. If WWIS commences a proceeding against Granger in NSW Supreme Court, what choice of law approach would the court most likely follow:

A.

The contract would not be governed by any law because under Australian choice of law rules, Greenland law would be the choice of law because that is the place of performance. But, since this is an area where Greenland does not have its own law, there would not be any law selected.

B.

Most likely NSW and Australian law because there seems to be a strong implication or inference that the parties intended NSW/Australian law. There is an exclusive NSW dispute resolution clause and many aspects of the contract point to NSW such as payment and evaluation of employee performance.

C.The contract would be governed by Australian substantive law because the contract expressly states that it is to be governed by Australia law.

D.

Because Australia is a renvoi country, the Court must first apply Danish choice of law rules which under Rome I would likely point to the place where the service provider (Granger) has his habitual place of residence (Greenland) which would result in Danish law being applied.

E.

The NSW Court would refer the matter to the Supreme Court of Denmark to determine whether Greenlandic or Danish law applied in the first instance.

The contract states that any dispute shall be brought in a court within Denmark or Australia and that the parties consent to the jurisdiction of such courts. If the matter were brought in NSW Supreme Court, what would be the likely choice of law?

A.Without an express choice of law, Australia might be held to be the inferred choice of law, but if no inferred choice of law was found, then the Court would seek the law with which the contract has its closest and most real connection.

B.

The NSW Court would look to see which government had the greater interest in having its laws applied.

C.

If there was not an express or inferred choice of law but the indicative rule pointed to Australian law as the choice of law, then renvoi could apply because Australia is a full renvoi country and renvoi may attach to choice of law where there is not an express or inferred choice of law.

D.

A and B

E.

A and C

F.

All of the above