2018 ISDA Choice of Court and Governing Law Guide

Transcription

1 2018 ISDA Choice of Court and Governing Law Guide International Swaps and Derivatives Association, Inc.

2 Copyright 2018 by International Swaps and Derivatives Association, Inc. 10 E 53 rd Street 9th Floor New York, NY Version 1.0 Publication Date: 27 February 2018 ii

3 TABLE OF CONTENTS INTRODUCTION iv 1 THE 2018 ISDA MODEL CHOICE OF COURT CLAUSES 2 Introduction 2 Exclusive and non-exclusive jurisdiction clauses 3 Influence of the Hague Convention 5 Definition of Proceedings 7 2 THE 2018 ISDA MODEL GOVERNING LAW CLAUSE 8 Choice of law for non-contractual obligations 8 The model governing law clause 9 3 THE MODEL CLAUSES 9 Overview 9 Usage 9 APPENDIX A Model exclusive jurisdiction clause (English courts) 11 APPENDIX B Model exclusive jurisdiction clause (courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City) 12 APPENDIX C Model non-exclusive jurisdiction clause 13 APPENDIX D Model governing law clause (covering the choice of law for noncontractual obligations) 15 iii

4 INTRODUCTION This Guide provides guidance on the use of model choice of court and choice of law provisions which members can choose to replace the current provisions in either the ISDA 2002 Master Agreement (the 2002 Agreement ) or the ISDA 1992 Master Agreement (Multicurrency Cross Border) (the 1992 Agreement ). It includes optional model forms of exclusive and non-exclusive jurisdiction clauses as well as an alternative model Section 13(a) governing law clause expressly covering the choice of law for non-contractual obligations. This Guide is supplemental to the guidance in the ISDA User s Guide in relation to Section 13 of the 2002 Agreement and 1992 Agreement respectively. Members are of course free to continue to use the current jurisdiction and governing law provisions contained in Section 13 of the 2002 Agreement and 1992 Agreement respectively. The model clauses do not automatically amend existing jurisdiction agreements contained in 1992 or 2002 ISDA Master Agreements already entered into between members. This Guide is issued by the International Swaps and Derivatives Association, Inc. ( ISDA ) following a consultation with members. The consultation commenced with a memorandum to members dated 12 July 2017 and entitled Consultation on ISDA Master Agreement Jurisdiction Provisions. 1 This memorandum set out the key issues and invited members views on the current jurisdiction provisions contained in the 2002 Agreement and 1992 Agreement. This was followed by ISDA member calls held on 6 September A further memorandum entitled Update on members responses and ISDA s proposals 2 provided an overview of the written responses and other feedback to the questions put to members and was circulated to members on 21 November Further ISDA member calls took place on 7 December A draft of this Guide has been circulated for comment by members prior to being finalised. ISDA has already provided comprehensive guidance on the use of arbitration instead of the standard choice of court agreements. This guidance is contained in the 2013 ISDA Arbitration Guide. 3 Accordingly, the selection of arbitration (including choices of court with an option to arbitrate) is outside the scope of this Guide. THIS GUIDE DOES NOT PURPORT AND SHOULD NOT BE CONSIDERED TO BE A GUIDE OR EXPLANATION OF ALL RELEVANT ISSUES OR CONSIDERATIONS IN A PARTICULAR TRANSACTION OR CONTRACTUAL RELATIONSHIP. PARTIES SHOULD THEREFORE CONSULT WITH THEIR LEGAL ADVISERS AND ANY OTHER ADVISER THEY DEEM APPROPRIATE PRIOR TO USING ANY ISDA STANDARD DOCUMENTATION. 1 A copy of the consultation memorandum is available at 2 A copy of the memorandum is available at 3 A copy of the 2013 ISDA Arbitration Guide is available at iv

5 ISDA ASSUMES NO RESPONSIBILITY FOR ANY USE TO WHICH ANY OF ITS DOCUMENTATION OR ANY DEFINITION OR PROVISION CONTAINED THEREIN MAY BE PUT. Copies of any of the published ISDA standard documentation may be obtained from ISDA s website, under ISDA Bookstore. v

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7 2018 CHOICE OF COURT AND GOVERNING LAW GUIDE 1 THE 2018 ISDA MODEL CHOICE OF COURT CLAUSES Introduction 1.1 In the absence of any express agreement between the parties to a contract, any dispute between them might fall to be heard by any court which would otherwise have jurisdiction over that dispute. This can cause uncertainty and inconvenience and can lead to additional costs and delay in progressing proceedings. 1.2 To help avoid this, parties to a contract can agree which courts should hear their disputes (assuming they do not wish to use arbitration) by using a jurisdiction clause. This is a dispute resolution clause by which the parties elect to have any dispute arising out of or in connection with the underlying contract heard by a nominated court. 1.3 Both the 1992 and the 2002 Agreements contain a jurisdiction clause in favour of: the English courts, if English law is expressed as the governing law in the Schedule; or the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City, if the laws of the State of New York are expressed as the governing law in the Schedule, as non-exclusive choices save for certain exceptions which provide for exclusivity in some scenarios. These exceptions were drafted taking into account the international legal instruments dealing with courts jurisdiction at the time of those forms. 1.4 Following consultation with members, ISDA recognises that the jurisdiction provisions of the available Master Agreements may be regarded as somewhat outdated given a number of important legislative developments since the provisions were originally formulated. 1.5 Another important change since the 1992 and 2002 Agreements were published is the Convention of 30 June 2005 on Choice of Court Agreements (the Hague Convention ), which is addressed in more detail below. 1.6 In light of these developments and following feedback from members, this Guide offers two model forms of jurisdiction clauses: a straightforward exclusive jurisdiction clause and, alternatively, a straightforward non-exclusive jurisdiction clause. ISDA is of the view that this currently represents the two choices most relevant to most parties in most circumstances. Members are of course free to 2

8 continue to use the existing jurisdiction (and governing law) provisions contained in Section 13 of the 1992 Agreement and 2002 Agreement respectively. Exclusive and non-exclusive jurisdiction clauses 1.7 An exclusive jurisdiction clause requires that disputes covered by the clause be resolved solely in the nominated courts (i.e. in the case of the model clauses in this Guide, either the courts of England or courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City, depending on the choice of governing law selected in the Schedule), and nowhere else. 1.8 As such, the main characteristic of an exclusive jurisdiction clause (aside from providing a basis upon which the chosen court is likely to accept jurisdiction) is to attempt to preclude jurisdiction being accepted by any other court. When proceedings come before a non-chosen court, the precise treatment of the clause (i.e. whether that court will decline jurisdiction because of the clause) will depend upon the legal regime applicable to the clause before that court. Depending on the circumstances, multi-lateral international arrangements may apply to the question (for example, the treatment of jurisdiction clauses in favour of an EU court within the EU under Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Recast ); the Hague Convention is another example discussed in more detail below below), or otherwise it will be down to that court s own rules. Further, insofar as the chosen court is concerned, there may also be steps that it can take to preserve its jurisdiction (such as, in the case of both the English and New York courts, anti-suit injunctions although, under EU law, the English courts are currently constrained from doing so where the non-chosen court in which proceedings are commenced is in an EU Member State, Switzerland, Norway or Iceland). It is in these ways that the deployment of an exclusive jurisdiction clause will often operate to prevent proceedings from being brought elsewhere. 1.9 In contrast, a non-exclusive choice of court in favour of a specified jurisdiction does not preclude a party from commencing a claim other than in the specified court, but the non-specified court will need to determine, pursuant to the rules which apply before it, whether it has jurisdiction to hear the claim which has been made. In short, a non-exclusive choice of court means that there is no contractual reason why a nonspecified court is prevented from hearing a claim under the contract to which the clause relates because of the choice of court agreed by the parties A non-exclusive jurisdiction clause is generally used when both of the parties wish to retain a degree of flexibility as to where they can bring proceedings. It provides 3

9 some certainty to the extent that it means that the nominated courts are likely to accept jurisdiction over the claim (i.e. in the case of the model clauses in this Guide, either the courts of England or courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City, depending on the choice of governing law) but both parties retain the flexibility to sue elsewhere insofar as another court will take jurisdiction under the rules applicable before it A number of competing considerations may affect a party s decision whether to use either an exclusive or a non-exclusive jurisdiction clause. Members may prefer to select an exclusive jurisdiction clause in certain situations, or to select a nonexclusive jurisdiction clause in other cases While ISDA is not in a position to comment on the relative commercial merits between an exclusive and a non-exclusive jurisdiction clause for particular counterparties, the typical considerations which may lead parties to opt for one clause over the other in certain circumstances include the following: An exclusive jurisdiction clause is more likely to prevent parallel or multiple proceedings and inconsistent judgments in different national courts and avoids the attendant risk and expense A non-exclusive jurisdiction clause is more likely to preserve a party s ability to sue the counterparty in a number of possible venues as and when the need arises. For example, it may preserve a party s flexibility to bring proceedings in other jurisdictions where a counterparty has assets but against which enforcement of an English or New York court judgment may be difficult (for example, because of local law provisions) Such flexibility, however, can operate as both an advantage and a disadvantage. Although it retains the flexibility discussed above, conversely it leaves open the possibility of one party commencing proceedings in jurisdictions other than the one identified in the non-exclusive jurisdiction clause, which may result in multiple proceedings in one or more jurisdictions which the other party may regard as unfavourable Where the benefit of the Hague Convention (discussed in more detail below) is required, an exclusive jurisdiction clause will almost certainly have to be used. This is because any clause which in any way permits proceedings before any other court is not considered an exclusive choice of court agreement within the meaning of Article 3(a) of the Hague Convention. 4

10 Influence of the Hague Convention 1.13 The Hague Convention seeks to promote the use of exclusive choice of court agreements in international contracts by requiring effect to be given both to such agreements and to the judgments of courts nominated thereunder. 4 It does this in two ways: It obliges states party to the Hague Convention ( Contracting States ) to give effect to such an agreement made in favour of a Contracting State; whether that be itself (i.e. to accept jurisdiction as the chosen forum) or another Contracting State (i.e. to decline jurisdiction as the non-chosen forum) Judgments from a court in a Contracting State designated by such a clause will be entitled to recognition and enforcement in other Contracting States subject to the terms of the Hague Convention The Hague Convention contains a number of exceptions and restrictions on its scope, but one of the most important is that it only applies to an exclusive choice of court agreement as defined in Article 3. Amongst other things, this provision requires the clause to designate the courts of one Contracting State or one or more specific courts of one Contracting State to the exclusion of the jurisdiction of any other courts At the time of writing, the Contracting States are Singapore, Mexico and the EU Member States. Provisions in the Hague Convention ensure that recognition and enforcement of judgments as between the EU Member States will always be under the Brussels I Recast, and also specify the circumstances in which the jurisdictional effect of clauses otherwise within the scope of the Hague Convention will continue to be determined by the Brussels I Recast It should therefore be appreciated that the Hague Convention will, for so long as the USA is not a Contracting State, have no application to the forms of clause in this Guide which select the New York state or federal courts. Furthermore, where the English courts are chosen, the Hague Convention s relevance is limited at present The full text of the Hague Convention is available at Technically there is a limited exception for its recognition and enforcement regime to apply to other forms of clause where both the nominated and receiving Contracting States have made reciprocal declarations. However, as at the time of writing, neither the EU, nor any other non-eu Hague Convention State, has done so and, in any event, this facility does not permit extension of the jurisdictional provisions of the Hague Convention to such clauses. This Guide is drafted on the assumption that no relevant declarations exist. The official status table of the Hague Convention can be found at This is for two reasons. First, the Hague Convention s interaction with the intra-eu rules of the Brussels I Recast means that the former s practical effect is largely confined to cases where an English judgment is to be enforced in a non-eu Hague Convention State. Second, the UK s status as a Contracting State currently depends upon it being an EU Member State and, upon the UK s anticipated withdrawal from the EU, questions may arise as to the applicability of the Hague Convention to exclusive jurisdiction clauses entered into in favour of the English courts whilst the UK was an EU Member State. 5

11 Where a case falls outside the scope of the Hague Convention for whatever reason, the consequence is simply that the jurisdictional effect of the relevant clause, and the effect to be given to any relevant judgment, falls to be determined by whatever rules would otherwise apply in the relevant court However, as more states ratify the Hague Convention (including, potentially, the USA) it is only likely to increase in relevance. In a similar vein, from the English courts point of view, if the UK independently ratifies the Hague Convention post- Brexit (as the UK Government has, at the time of writing, indicated an intention to), then, depending upon any other arrangement with the EU Member States, it may assume more importance as an instrument to facilitate the enforcement of English judgments in the EU Against this background, conforming any model exclusive jurisdiction clause to the Hague Convention s requirements, irrespective of its actual application to any given case, was therefore considered an important step in avoiding the need for further consultation and changes in future, and was supported by unanimous consensus from members in their feedback To this end, ISDA has provided two separate model exclusive jurisdiction clauses in this Guide, each to be used depending on the selection of either English law or the laws of the State of New York as the governing law. The clause in Appendix A should be used when English law is selected as the governing law in the Schedule and the clause in Appendix B should be used when the laws of the State of New York law are selected This form of drafting departs from the formulation used in Section 13(b) of the 1992 Agreement and the 2002 Agreement, which includes both a submission to the English courts if the Agreement is expressed to be governed by English law and, alternatively, a submission to the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City if the Agreement is expressed to be governed by the laws of the State of New York. The rationale for separating the clauses in this way (rather than the original architecture of having the courts named and contingent upon the selected governing law) is to remove any scope for argument as to whether the model exclusive jurisdiction clause used complies with the requirements of Article 3 of the Hague Convention, specifically by avoiding scope for any argument that the courts of more than one 6

12 Contracting State have been nominated (which could take the clause outside the definition of an Exclusive Choice of Court Agreement ). 8 Definition of Proceedings 1.21 ISDA is aware that some users have historically elected to amend the jurisdiction clause in ISDA Master Agreements (in particular, in the 1992 Agreement), to include broader language describing the nature and scope of the matters which are to fall within the jurisdiction agreement. This is done in order to mitigate the risk that a court in a jurisdiction other than that chosen takes a restrictive view of the scope of the clause and takes jurisdiction on the basis that the dispute is not related to the derivative transaction but to other matters and is thus not covered by the jurisdiction agreement It should be noted that this concern is primarily an issue where there is an exclusive jurisdiction clause and the issue before the non-chosen court is that it should not accept jurisdiction. Furthermore, there may in practice be little room to take a restrictive approach if such a court, applying its own conflicts of law rules, applies New York law or English law (depending on the clause used) to the construction of the jurisdiction agreement (which is consistent with the likely approach of the New York and English courts to the jurisdiction clauses in the 1992 and 2002 Agreements, and those in this Guide) ISDA nevertheless recognises that there now exists an opportunity to expand the wording of the scope of the disputes referred to in the jurisdiction clauses expressly to include disputes which do not arise directly from the interpretation and operation of the contracts but are matters such as non-contractual rights and obligations arising from, out of, or in connection with, the ISDA Master Agreements. Accordingly, the model clauses in the Guide incorporate expansion in a manner consistent with the 2013 ISDA Arbitration Guide For the avoidance of doubt, the drafting changes are for the purposes of clarification only. The express language clarifying the matters included by the definition does not imply that the current language in the 1992 and 2002 Agreements is intended to be (or should be) construed narrowly. 8 The model clause at Appendix B specifying the exclusive jurisdiction of the Courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City remains an Exclusive Choice of Court Agreement for the purposes of Article 3 of the Hague Convention. See the Hartley/Dogauchi Explanatory Report on the 2005 Hague Choice of Court Agreements Convention (2013) at paragraph 107 footnote 138, which clarifies, by way of example, that a clause designating the state courts of the state of New Jersey or the federal courts located in that state would be an exclusive choice of court agreement within the meaning of Article 3 of the Hague Convention. A copy of the report is available online at 7

13 2 THE 2018 ISDA MODEL GOVERNING LAW CLAUSE Choice of law for non-contractual obligations 2.1 The governing law clauses in both the 1992 and 2002 Master Agreement state that the Agreement shall be governed by and construed in accordance with the law specified in the Schedule. Before both the English and the New York courts, the parties choice of law over contractual obligations is largely given effect (assuming that they are both commercial parties on an equal footing). 2.2 However, since 2009 and the coming into force of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (the Rome II Regulation ), standardised rules across the EU courts have given effect to a similar choice to be made in respect of noncontractual obligations. In particular, Article 14 of the Rome II Regulation provides for this (albeit subject to certain limitations including the choice having been freely negotiated, and the proviso that the parties are pursuing a commercial activity). 2.3 The advent of the Rome II Regulation has seen an expansion of governing law clauses to incorporate the express choice of law for non-contractual obligations where courts in the EU are chosen. This choice would also be effective in the New York state/federal courts (and may be given effect before an arbitral tribunal hence the drafting of the governing law clause in the 2013 ISDA Arbitration Guide, which incorporates such an expansion). It is anticipated that such choices will continue to be recognised by the English courts after the UK s withdrawal from the EU. 2.4 Non-contractual obligations and liabilities can be very relevant in disputes connected to derivatives. Claims framed in tort or delict, for example, may be raised in disputes involving a contractual relationship, such as claims relating to concurrent duties of care or tortious acts leading to the formation of the contract. In the absence of an express choice of law clause for non-contractual obligations, the applicable law for such obligations will fall to be determined by the conflict of laws rules of the court trying the case, and it may be concluded that the law applicable to non-contractual claims is different from the governing law of the contract. It, therefore, can make sense expressly to choose a governing law to apply to these non-contractual claims for the sake of certainty. During the consultation, members expressed their strong preference that non-contractual obligations should be governed by the same law as the contractual obligations. 2.5 ISDA has therefore included in this Guide a model governing law clause expressly covering the choice of law for non-contractual obligations. 8

14 The model governing law clause 2.6 The model governing law clause states that it is the intention of the parties that their non-contractual obligations shall be governed by the same law as that governing the agreement itself. 2.7 The express inclusion of a choice of law for non-contractual obligations in the model clause does not imply that the current language in the 1992 Agreement and 2002 Agreement is intended to be (or should be) construed narrowly. 3 THE MODEL CLAUSES Overview 3.1 This Guide contains the following optional model clauses: Model exclusive jurisdiction clauses at: (i) (ii) Appendix A: for use when English law is selected as the governing law in the Schedule; or Appendix B: for use when the laws of the State of New York are selected as the governing law in the Schedule A model non-exclusive jurisdiction clause at Appendix C to be used irrespective of whether English law or the laws of the State of New York is selected as the governing law in the Schedule A model governing law clause covering the choice of law for non-contractual obligations clause at Appendix D to be used irrespective of whether English law or the laws of the State of New York is selected as the governing law in the Schedule. Usage 3.2 Each model clause is intended to form part of the Schedule to the parties Master Agreement. The clauses have been drafted on the assumption that parties will include them when entering into a new Master Agreement. Parties amending existing agreements will need to include additional wording in an amended Schedule to reflect that fact The model jurisdiction clauses at Appendices A, B and C contain wording which is to replace the existing jurisdiction clause (Section 13(b)) of the Master Agreement. It is important to include in the Schedule the wording in the model clause deleting 9 Parties amending existing agreements may also need to consider whether any assumptions made in relation to any previous noncontractual conduct are affected by an expansion of the governing law clause. 9

15 the existing provision in Section 13(b); a failure to do so would leave the Master Agreement as a whole with two jurisdiction clauses, which may be a source of confusion as to the parties true intention and may prejudice the effectiveness of the model clauses in some jurisdictions. Similarly, the model governing law clause at Appendix D contains wording which is to replace the existing governing law clause (Section 13(a)) of the Master Agreement. 3.4 Parties should note that the model clauses have been drafted with English law and the laws of the State of New York in mind together with the use of the corresponding local courts in each case. To the extent that any of these variables are changed, the clauses may require adaptation. Parties doing so should seek separate legal advice. 3.5 Furthermore, the model clauses are provided to assist parties with the framework of their jurisdiction and governing law clauses. This is not to be equated with, for example, a conclusion that use of a jurisdiction clause, as opposed to arbitration, will necessarily be suitable in the circumstances of every transaction. Parties should consider this and seek advice as necessary on matters including, for example, whether a judgment from the relevant court is likely to be enforceable in any jurisdiction in which subsequent enforcement may be required. 3.6 As noted in the Introduction, this Guide merely provides guidance and model clauses. Parties should always seek appropriate legal advice and any other relevant advice necessary to ensure that the nominated courts are an appropriate forum for hearing their disputes, and that the jurisdiction clause chosen is appropriate and properly drafted for that purpose in relation to that specific relationship. 10

16 APPENDIX A Model exclusive jurisdiction clause (English courts) This clause is intended for use where: the parties have selected English law as the governing law in the Schedule; and both parties intend that any dispute arising out of or in connection with the Agreement shall only be heard in the English courts (to the exclusion of the courts in all other countries). In other words, it is both parties intention that they will both be limited to suing only in the English courts. The following provision should be included in Part 4 (Miscellaneous) of the Schedule: ( ) Section 13(b) Jurisdiction shall be deleted in its entirety and replaced with the following: (b) Jurisdiction. With respect to any dispute, claim, difference or controversy arising out of, relating to or having any connection with this Agreement, including any dispute as to its existence, validity, interpretation, performance, breach or termination or the consequences of its nullity and any dispute relating to any noncontractual obligations arising out of or in connection with it ( Proceedings ), each party irrevocably:- (i) (ii) submits to the exclusive jurisdiction of the English courts; and waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party. 11

17 APPENDIX B Model exclusive jurisdiction clause (courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City) This clause is intended for use where: the parties have selected the laws of the State of New York as the governing law in the Schedule; both parties intend that any claim arising out of or in connection with the Agreement shall only be heard in the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City (to the exclusion of the courts in all other countries); and it is both parties intention that they will both be limited to suing only in these courts. The following provision should be included in Part 4 (Miscellaneous) of the Schedule: ( ) Section 13(b) Jurisdiction shall be deleted in its entirety and replaced with the following: (b) Jurisdiction. With respect to any dispute, claim, difference or controversy arising out of, relating to or having any connection with this Agreement, including any dispute as to its existence, validity, interpretation, performance, breach or termination or the consequences of its nullity and any dispute relating to any noncontractual obligations arising out of or in connection with it ( Proceedings ), each party irrevocably:- (i) (ii) submits to the exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City; and waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party. 12

18 APPENDIX C Model non-exclusive jurisdiction clause This clause is intended for use where: the parties have selected either English law or the laws of the State of New York as the governing law in the Schedule; both parties intend to retain a degree of flexibility as to where they can bring proceedings; and both parties intend that they should not be precluded from commencing a claim other than in the named court (i.e. either the courts of England or courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City, depending on the choice of governing law), recognising that the non-specified court will need to determine, pursuant to its own rules, whether it has jurisdiction to hear the claim that has been made. The following provision should be included in Part 4 (Miscellaneous) of the Schedule: ( ) Section 13(b) Jurisdiction shall be deleted in its entirety and replaced with the following: (b) Jurisdiction. With respect to any dispute, claim, difference or controversy arising out of, relating to or having any connection with this Agreement, including any dispute as to its existence, validity, interpretation, performance, breach or termination or the consequences of its nullity and any dispute relating to any noncontractual obligations arising out of or in connection with it ( Proceedings ), each party irrevocably:- (i) submits: - (1) if this Agreement is expressed to be governed by English law, to the non-exclusive jurisdiction of the English courts; or (2) if this Agreement is expressed to be governed by the laws of the State of New York, to the non-exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City; 13

19 (ii) (iii) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party; and agrees, to the extent permitted by applicable law, that the bringing of Proceedings in any one or more jurisdictions will not preclude the bringing of Proceedings in any other jurisdiction. 14

20 APPENDIX D Model governing law clause (covering the choice of law for non-contractual obligations) This clause is intended for use where: the parties have selected either English law or the laws of the State of New York as the governing law in the Schedule; and the parties intend that their non-contractual obligations shall be governed by the same law as that governing the agreement itself. The following provision should be included in Part 4 (Miscellaneous) of the Schedule: ( ) Section 13(a) Governing Law shall be deleted in its entirety and replaced with the following: Governing Law. This Agreement and any non-contractual obligations arising out of or in connection with it will be governed by and construed in accordance with the law specified in the Schedule. 15