FAI General Insurance Co v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 117

Facts: In NSWSC, P argued that D had committed a material non-disclosure or breach of their duty of ‘utmost good faith’. The material non-disclosure claim, if successful, would avoid the whole contract ab initio. The dispute resolution clauses were: “This Reinsurance is subject to English jurisdiction”, “Choice of Law: English”. FAI General Insurance attempted to argue that it was not exclusive.

Issue: Were these clauses exclusive or non-exclusive jurisdiction?

Held: It was an exclusive jurisdiction clause, as a matter of construction. The parties had expressly agreed upon English law, so it may be inferred that they intended English courts to determine the disputes.

Ratio: Whether a clause is an exclusive or non-exclusive jurisdiction clause depends on the construction of the agreement. The use of the word 'exclusive', or a variation thereof such as 'only' or 'sole' is not essential. Other language in clause or contract may point towards an intention of exclusivity.