McGuid v Office De Commercialisation et D'Exportation

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Tuesday 20 July 1999 - extempore Revised 15 September 1999

50121/98 - SARWAT McGUID TRADING AS ABS GULF v OFFICE DE COMMERCIALISATION ET D'EXPORTATION & ORS JUDGMENT 1 HIS HONOUR: There is before the Court a notice of motion filed on 6 April 1999 pursuant to which the first defendant, Office De Commercialisation Et D' Exportation ["OCE"], seeks for the proceedings to be permanently stayed. 2 The parties to the proceedings are Sarwat McGuid trading as ABS Gulf ["Gulf"], OCE, National Australia Bank Limited ["the Bank] as second defendant and Export Finance Insurance Corporation ["EFIC"] as third defendant. 3 The further amended summons was filed on 12 July 1999. 4 The plaintiff is a resident of New South Wales trading from premises at 12 Lily Street, Croydon Park, and is a Cost Accountant and Licensed Meat and Livestock Exporter. The first defendant is an entity formed and existing under the laws of the Kingdom of Morocco. The Bank is an Australian corporation. EFIC is an Australian corporation. 5 The amended summons identifies the claims pursued against OCE, against the Bank and EFIC. 6 In so far as the plaintiff's proceedings concern its claims against OCE, the notice of contentions makes fairly plain that the dispute is essentially contractually based. There is, however, also a representational case and an unjust enrichment case. 7 The dispute arises in relation to the April 1998 issue by OCE of a request for tenders to supply frozen bovine meat as specified. 8 Following a tender submitted by Gulf, Gulf and OCE are alleged to have agreed that Gulf would supply meat to OCE on particular terms and conditions recorded in a document accepted by the parties as having been signed by them in Casablanca on or about 22 May 1998. I understand there to be no contention but that following further negotiations between Gulf and OCE, the terms and conditions were added to and varied and agreed as recorded in a document signed by the parties, this time in Sydney, on or about 11 June 1998. 9 It is common ground that the contract provided that Gulf would deliver two thousand metric tonnes of meat at a price of 1,970 per metric tonne in store to Agadir in Morocco. 10 Article IV of the contract provided that payment would be in US dollars by irrevocable and confirmed letter of credit opened by the buyer in favour of the seller in sufficient time to allow the delivery schedule stipulated in the contract to be met by the seller. Apparently it is common ground that on or about 10 June 1998, OCE through its agent Banque Marocaine Du Commerce Exterieur, Casablanca, ["BMCE"], purported to issue a letter of credit complying with its obligations under the contract. 11 Gulf's claim is that the letter of credit did not comply with the contract for several reasons specified in para 9 of the notice of contentions, including that it was unconfirmed and so drawn that no bank was likely to confirm it according to banking practices and usages. 12 Gulf alleges that it required OCE to open a confirmable letter of credit in conformity with the contract and that thereafter, on or about 22 June 1998, OCE through its agent BMCE purported to issue a further letter of credit pursuant to the contract. The further letter of credit is said by Gulf to have also been in breach of the contract for the same reasons as were set out in relation to the earlier letter of credit. 13 Gulf's case is that, despite further communications from the plaintiff and several further amendments to the proffered letter of credit, OCE failed, neglected or refused to open a confirmable or confirmed letter of credit which complied with the contract. 14 Gulf therefore alleges that OCE had breached and repudiated the contract thereby discharging Gulf from its obligation to perform. In mitigation of its damages, Gulf asserts that it declined to ship any meat to Morocco. 15 Para 15 of the contentions then alleges the plaintiff's damage in detail, including lost opportunity to make profits in performing the contract and other damages. 16 The above description from paras 1 to 15 inclusive of the notice of contentions may broadly be regarded as the first of Gulf's counts against OCE by way of breach and repudiation of contract. 17 Clearly enough the issues which arise under that count are contractual issues which, to my mind, squarely arise out of the terms of the supply agreement, by which description I shall refer to the 22 May 1998 and 11 June 1998 agreement earlier referred to. 18 Paras 16 through to 25 inclusive of the contentions then allege matters going to the plaintiff's conduct by way, on the plaintiff's allegations, of its, at the request of OCE, having procured BMCE to provide to OCE a surety in the sum of $US120,000 by banker's letter - the description of this agreement in para 16 of the notice of contentions being "the surety agreement". 19 It is unnecessary in this judgment to set out the particulars to para 16 which are self-explanatory. 20 Paras 17, 18 and 19 of the contentions then allege a number of implied terms of the so-called surety agreement imposing, it is suggested, obligations upon OCE. 21 Para 20 of the contentions then alleges OCE's breaches of implied terms of the surety agreement. 22 Para 21 of the contentions asserts that OCE's failure to provide the letter of credit "discharged the plaintiff from any obligation to further perform the supply contract on its behalf as a matter of common law or by reason of the operation of paragraph 577 of the Moroccan Civil Code". 23 Para 22 of the contentions asserts that OCE's failure to provide the letter of credit was a repudiatory breach of the supply contract by OCE which Gulf accepted by not shipping or delivering the goods the subject to the contract. 24 Para 23 of the contention seems to me to be particularly important. It alleges:

"The repudiation and acceptance of repudiation of the supply agreement brought the surety agreement to an end as to all the rights and liabilities under it". 25 Plainly enough the plaintiff seeks in that paragraph to tie to the extancy of the surety agreement, the questions going to the termination or alleged termination following repudiation and acceptance of repudiation, of the supply agreement. 26 Paras 24 and 25 of the contentions do not require to be repeated. 27 Paras 26 through to 28 inclusive of the contentions then deal with the plaintiff's allegations of wrongful claims by OCE from BMCE allegedly made in breach of the surety agreement. It is again unnecessary to repeat those paragraphs which are self-explanatory. 28 Para 29A is a money had and received count dealing again with the case as between plaintiff and first defendant. 29 The particulars to Para 29B commence detail of the misrepresentation case. It broadly pleads that the benefit of the surety contract was obtained by OCE upon representations that OCE presently intended to perform the contractual obligations imposed on it by the supply contract according to its terms and in particular to provide a confirmable irrevocable letter of credit for the amount of the purchase price. The representations are said to have been made either with reckless indifference to truth or falsity, or negligently. In the alternative allegations are made in relation to representations as to future performance. 30 Para 30 is the unjust enrichment count in relation to the first defendant and it is self-explanatory. 31 The claims made against the Bank are to be found in the contentions paras 31 to 34 inclusive. They relate to the provision by Gulf through the Bank by way of stand-by letter of credit in favour of BMCE in the sum of $US120,000 of the bank security required by the contract in favour of OCE. The claim here is that in breach of contract and without valid claim of right, OCE on or about 13 October caused the claim to be made on the Bank for it to make payment of the bank security to BMCE. 32 It is common ground that in earlier interlocutory steps in these proceedings injunctive relief was granted restraining the Bank from making such payment of the bank security. My understanding is that that injunctive relief continues until further order. 33 The claim made against the third defendant is pleaded in paras 35 to 39 of the contentions. The plaintiff asserts that it entered into what is known as an 'unfair call policy', namely a contract of insurance with EFIC to indemnify 95 per cent of its loss arising from a call being made for payment of the performance bond. The first defendant is said to have made a call on the performance bond which is said to have been an 'unfair call' within the meaning of the policy. The claim is that by reason of the unfair call the plaintiff has suffered loss in that it is liable to indemnify the Bank in respect of any sum it may be liable to pay to BMCE in consequence of the call. It is common ground that EFIC has failed or refused to indemnify Gulf pursuant to the unfair call policy. The claims against the third defendant are then pursued in respect of the plaintiff's alleged contractual rights against the third defendant. 34 There are broadly three areas or substantive issues or groups of issues which have been the subject of submissions from the parties on the stay application. 35 The first deals with the proper construction of article VI of the supply agreement and the question of whether or not, upon the proper construction of that article, the contract conferred exclusive jurisdiction upon the courts of Casablanca in respect of disputes. 36 The second concerns what may be referred to as the reach of article VI. In short, does article VI extend to cover disputes which the supply contract "called up"; does article VI extend to those contractual instruments brought into existence pursuant to obligations said to have been imposed upon Gulf or alternatively OCE, by reason of the terms of the supply agreement or by reason of terms implicit as between the plaintiff and the first defendant? 37 The third issue goes to the discretionary considerations which it is common ground are to be taken into account by the Court in determining the fate of the notice of motion. 38 It seems convenient to deal with the three issues seriatim although from time to time factors relevant to each of the issues carry over with some effect to other of the issues. 39 I turn first then to the proper construction of article VI. 40 The contract entered into by Gulf and OCE as I have said was a written contract for the supply of meat to Morocco. It was, it is common ground, entered into in Casablanca on 22 May 1998 and is written in French. OCE submits that the contract contains a clause which in the event of any dispute confers exclusive jurisdiction upon the courts of Casablanca. 41 The second of the documents which I have referred to, that dated 11 June 1998, is a document by which the parties made further provision in relation to specifications for quality, delivery and hygiene of the meat. It is common ground that this document does not refer to dispute resolution, jurisdiction, governing law of the contract or the competence of the courts of Morocco or Australia. 42 A question has been raised in the submissions of counsel and in the affidavits and statements read on the hearing of the stay application as to the proper translation of the relevant provision in the 22 May 1998 document. That document provides as follows:- '. . . tout differend decoulant du present contrat sera tranche a l'amiable et, a defaut, par les Tribunaux de CASABLANCA dont les deux parties reconnaissent la competence pour le reglement de tous les litiges dans l'application des dispositions du present contrat.' 43 During the course of the application for interlocutory relief in the proceedings an affidavit was read made by Mr McGuid on 17 September 1998. That affidavit annexed as annexure D what was said to be a true translation from the French into the English language of the 22 May 1998 document. That translation was by Mr R J M Colinard described as "translator accredited with NAATI to translate from the French language into the English language". 44 Relevantly the translation of articles V and VI was as follows: "Article V: Security.

The seller undertakes to deliver to OCE as a warranty of performance, a bank security issued by a Moroccan Bank and amounting to 3 per cent of the value of the present contract, that is to say $US120,000 which will be refunded him 30 days after total and complete delivery of the goods to Agadir.

Any dispute relating to the present contract will be resolved amicably and, if not, by the courts in Casablanca, the jurisdiction of which is acknowledged by both parties, for the resolution of all disputes regarding the performance of the stipulations of the present contract". 45 In an affidavit then made on 6 April 1999 by Mr Brian Hillman, solicitor for OCE, Mr Hillman annexed as annexure D a translation which he had had effected by a qualified interpreter and again being a translation, so it was alleged, of the relevant provisions of the supply agreement. It is unnecessary to return to the translations of article V because they were not in issue and the translation taken from Mr McGuid's affidavit and above set out may be accepted as the translation which the parties are content be treated as correct. 46 Mr Hillman, however, as annexure D to his affidavit of 6 April 1999 annexed a translation by Ms Narelle Fletcher described as 'NAATI Level 3 accredited translator'. This translation of article VI read as follows: "Article VI: Dispute.

Any dispute ensuing from the present contract will be settled amicably. Failing this, it will be settled by the courts of Casablanca whose competence is recognised by the two parties for settling all litigations in applying the provisions of the present contract". 47 Mr Hillman's affidavit was then followed by an affidavit this time made by Mr Colinard on 19 April 1999. Mr Colinard there deposes that he is a solicitor practising under the style Colinard & Co Solicitors and has the carriage of the proceedings on behalf of the plaintiff. In paras 14 to 23 of Mr Colinard's 19 April 1999 affidavit he refers to the affidavit of Mr Hillman and treats with his further consideration of the meanings of a number of the words used in the 22 May 1998 contract. '14. I have observed that there is a difference in the translation of Article VI of the contract dated 22 May 1998 in the French language annexed as Annexure "C" of the Affidavit of the Plaintiff sworn on 17 September 1998 and which is Annexure "B" to the Affidavit of Brian Hillman, solicitors for the First Defendant sworn on 6 April 1999. I revisited the translation in order to determine what is the most accurate translation of that Article into the English language. 15. I refer to the affidavit sworn on 17 September 1998 of the Plaintiff and to Annexure "D" thereof. Article VI was translated as follows by me: "ARTICLE VI: DISPUTE. "Any dispute, relating to the present contract will be resolved amicably and, if not, by the Courts in CASABLANCA, the jurisdiction of which is acknowledged by both parties, for the resolution of all disputes, regarding the performance of the stipulations of the present contract." 16. I refer to the Affidavit of Mr Brian Hillman, solicitor for the First Defendant sworn on 6 April 1999, and to Annexure "D" thereof. Article VI was translated as follows by Narelle Fletcher: "ARTICLE VI: DISPUTE "Any dispute ensuing from the present contract will be settled amicably. Failing this, it will be settled by the Courts of CASABLANCA whose competence is recognised by the two parties for settling all litigations in applying the provisions of the present contract". 17. I have considered further the meanings of the French words "sera", "competence" and "litige" in the present context and in the following French dictionaries: 1. Dictionnaire National de la Langue Francaise by M. Bescherelle snr. 1857 Edition; 2. Nouveau Dictionnaire Encyclopedique Larousse by Claude Auge, 1910 Edition; 3. Dictonnaire Alphabetique et Analogique de la Langue Francaise by Paul Robert, 1972 Edition; 4. Harrap's New Standard French and English Dictionary by J.E. Manson 1980 Edition; 18. I have noted the slow evolution of the word "litige" which in 1857 was considered technically to mean litigation and popularly to mean any dispute through 1910 where "litige" meant a justiciable dispute but generally understood to be a dispute to 1972 where the meaning appears to mean dispute generally, some of which are justiciable and others not. 19. The meaning of "competence" in all authorities seems to refer to "jurisdiction", "aptitude", "attributes" and "capacity" and "power". 20. The word "jurisdiction" would seem too of narrow and legalistic a translation of "competence". The "word" "capacity" in my opinion encompasses all the various connotations of the word "competence". 21. The word "sera" is the future third person singular of the verb "etre" ("to be" i.e. "Will be" in English). "Sera" is a reference to a future time and does not indicate in addition to a future time, a compulsion or an obligation. If a compulsion mandatorily is intended the words "devra etre" ("must be") should have been used, which indicate both an obligation from the verb "devoir" ("to have a duty to" i.e. "must") and "etre" (to be) which taken together give the meaning of "must be". The verb "sera" is stated once and governs both the possibility of resolving the dispute amicably and on failing this before the Courts in Casablanca. The capacity of which Courts to hear the dispute or to resolve the dispute is acknowledged. 22. I am accredited by the national Accreditation Authority for Translators and Interpreters ("NAATI") as a translator from French into English at and have been since 1989. French is my native tongue and I use it daily both socially and professionally with other French speakers. 23. In my opinion, the most accurate translation of Article VI from the French language into English taking into consideration the text referred to and having considered the translation given by Narelle Fletcher, is as follows: "Any dispute flowing from the present contract will be resolved amicably and failing this by the Courts in Casablanca, the capacity of which is acknowledged by both parties, for the resolution of all disputes, regarding the performance of the provisions of the present contract.". 48 OCE has submitted that if it is necessary to determine as between the various translations which is the correct translation, the Court should prefer either the first translation of Mr Colinard or the translation of Ms Fletcher. OCE submits that Mr Colinard is far from an impartial expert witness as not only is he the plaintiff's solicitor but he is also said to be a material witness of fact and appears as a principal in events deposed to in a number of paragraphs of Mr McGuid's affidavit of 17 September 1998 and in Mr McGuid's second affidavit of 14 October 1998. Mr Colinard acknowledges that he may be called as a witness of fact. 49 Counsel have referred the Court to a number of authorities dealing with the construction of exclusive jurisdiction clauses including, of recency, the judgment of Giles CJ Commercial Division in FAI General Insurance v Ocean Marine Mutual (1997) 41 NSWLR 117 and the decision of Rolfe J in Gem Plastics Pty Limited v Satrex Maritime Pty Limited (Unreported, Supreme Court of New South Wales, 9 June 1995). The two clauses considered in those cases were "This reinsurance is subject to English jurisdiction" and "This insurance is subject to South African jurisdiction". In each case the clauses were held to amount to exclusive jurisdiction clauses. 50 I accept OCE's submissions that a number of matters are clear from the authorities. These are: (a) that no fixed rules can be applied in the determination of the construction of clauses claimed to be exclusive jurisdiction clauses; instead every clause must be construed in the light of its particular wording and the other terms in the particular contract: "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" - per Giles CJ Commercial Division FAI v Ocean Marine 41 NSWLR 117 at 126

(b) a clause may be an exclusive jurisdiction clause even though the word "exclusive" has not been used: "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 v AEAKOS Compagnia Naviera SA (at 594), it would be a surrender to formalism to require a jurisdiction clause to provide in express terms that the chosen court is to be the exclusive forum" - per Giles CJ Commercial Division (1997) FAI v Ocean Marine 41 NSWLR 117 at 126 (c) the use of the word "shall" is capable of being "apposite to create the language of obligation"; (d) the fact that it would not have been necessary to agree that a country's court should have non-exclusive jurisdiction means that by expressly so agreeing, the parties must be taken to have intended to agree that the country would have exclusive jurisdiction: "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. It will not always be so, as the clause may have been intended only to put beyond doubt the existing jurisdiction . . . or be an unthinking inclusion" - per Giles CJ Commercial Division FAI General Insurance 41 NSWLR 117 at 127 51 In FAI General Insurance Giles further at p 126 said: '(c) Although mutuality, in the sense that both parties agree to the relevant jurisdiction, has been thought to point to exclusive jurisdiction, I have some difficulty seeing why that should be so. Lack of mutuality is likely to tell against exclusive jurisdiction (Continental Bank NA v Aeakos 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 Plc 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 Sohio Supply Co v Gatoil (USA) Inc; or the use of transitive language as in Austrian Lloyd Steamship Co v Gresham Life Assurance Society, Ltd, British Aerospace Plc v Dee Howard Co and Continental Bank NA v Aeakos Compania Naviera SA.'

(e) force should be given to use of the word "all" in the clause:- 'The exercise of jurisdiction: The criterion familiar in relation to a stay of proceedings on forum non conveniens grounds, whether this Court is a clearly inappropriate forum (see Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538), is displaced or modified when there is a submission to the exclusive jurisdiction of the courts of another country. In such circumstances the starting point is that the parties should be held to their bargain, and while this Court retains its jurisdiction and may decline to grant a stay of proceedings substantial grounds for doing so are required: see Huddart Parker Ltd v The Ship "Mill Hill" (1950) 81 CLR 502 at 508-509; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 230-231, 259; Akai Pty Ltd v Peoples Insurance Co Ltd (1995) 8 ANZ Ins Cas 61-254 at 75,855; (1996) 71 ALJR 156 at 160-161 (dissenting in the result but unimpaired on this point), 170; 141 ALR 374 at 380-381; 393. The principles identified in The Eleftheria Owners of Cargo Lately Laden on Board the Ship or Vessel Eleftheria v The Eleftheria (Owners) [1970] P 94 at 99 are established in England (see, eg, Aratra Potato Co Ltd v Egyptian Navigation Co (The El Amria) [1981] 2 Lloyd's Rep 119, The Sennar (No 2) [1985] 1 Lloyd's Rep 521 and Citi-March Ltd v Neptune Orient Lines Ltd [1996] 1 WLR 1367; [1996] 2 All ER 545). They have been adopted in the Court of Appeal and the High Court, and in my opinion I should apply them. They are: "(1) Where plaintiffs sue in England in breach of an agreement to refer disputes to a foreign court, and the defendants apply for a stay, the English court, assuming the claim to be otherwise within its jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not. (2) The discretion should be exercised by granting a stay unless strong cause for not doing so is shown. (3) The burden of proving such a strong cause is on the plaintiffs. (4) In exercising its discretion the court should take into account all the circumstances of the particular case." 52 Mr Cotman SC for the plaintiff has submitted that there being no exclusive jurisdiction clause in the surety contract and the surety contract being, on his submissions, a compound arrangement involving domestic Australian transactions, international transactions and domestic Moroccan transactions, there is no presumption in favour of Morocco as the proper forum for the determination of issues arising under that contract. 53 Mr Cotman's submissions further are that the only significance of an exclusive jurisdiction clause is that it creates a contractual obligations-based presumption in favour of a stay of proceedings. His submissions accept that the contractual onus excludes forum non conveniens issues as the determinant. His submissions accept that while the Court claims a discretion to hear and determine the matter before it, the onus is on the plaintiff to show compelling reasons why the stay should not be granted to the defendant. 54 In para 14 of the plaintiff's submissions of 16 July 1999 it is suggested that the only issue that can sensibly arise in relation to the supply agreement is whether the particular documents proffered by OCE as its letters of credit in performance of contract, or any of them, were confirmed irrevocable letters of credit referred to in the supply contract. The submission is then that this is not an issue that arises under Moroccan law. The submission is then as follows: 'That is not an issue that arises under Moroccan law. Whether a letter of credit is confirmed or irrevocable, or whether the document is a letter of credit, is a matter which, in international trade, falls to be determined by reference to principles that must transcend the domestic law of one of the contracting parties. In particular, because this is a matter that deals not only with the purchase price, but also has broader financial implications for the vendor, such as the ability to use the instrument as security, the issues have almost nothing to do with the domestic law of the purchaser.

Indeed, as appears from the documents issued by BMCE at the request of OCE, they purported to be issued in accordance with the "credits documentaires version revised 1993 No. 500 of the CCI": see affidavit of Sarwat McGuid of 17 September 1998 Annexure 'G', page 10, and as to the translation, see the translation of Braid sequence No. 909 which provides the translation "this credit is subject to RUU relating to documentary credits revised version of 1993 BR No. 500 of the CCI". The ICC, or CCI is the International Chamber of Commerce and UCP 500 is a publication of the ICC's commission on banking technique and practice published by the ICC and approved by the Banking Commission on 10 March 1993, effective from 1 January 1994 as "Uniformed Customs and Practice for Documentary Credits - 1993 Revision". Far from being an issue of domestic Moroccan law, OCE's banker for the purpose of issuing a letter of credit to satisfy its obligations under the contract, being BMCE, expressly embraced the international standard as the applicable standard in relation to whether the documents it was issuing were letters of credit and whether they would be accepted for confirmation by another bank. As to the significance of confirmation, see Article 9 of UCP 500 which replaced Article 10 of UCP 400. As to the significance of confirmation of a letter of credit in International trade transactions, see Lord Denning's judgment in Trans Trust S.P.R.L The Danubian Trading Co Limited (1952) 2 QB 297 at 304ff. As His Lordship points out the significance of a confirmation letter of credit is not confined merely to the payment of the price or the securing of the payment of the price to the vendor, it also constitutes a financial instrument which, as His Lordship notices, in the case of a trader permits, in whole or in part, the financing of the trade transaction.

There is no sensible reason why contractual engagements called for in a Supply Contract that may be expressly or implicitly the subject of the law of a particular jurisdiction ought themselves be the subject of the law of the same jurisdiction. Indeed, in international trade transactions there may be a substantial matrix of contracts each with a different implicit or nominated choice of law and choice of jurisdiction attaching to them, for example insurance contracts and shipping contracts.

In the instant case, the First Defendant relies on the provisions of the Supply Contract as providing an amnibus basis for a stay because it is said that the Supply Contract contains a contractual stipulation for exclusive jurisdiction in the Courts of Morocco.' 55 I return then to the first question, namely the proper construction of article VI. It is important, it seems to me, to recognise that albeit that there are a number of different versions of the appropriate translation of the article contended for, there is a degree of real commonality notwithstanding the differences. 56 Each of the respective translations begins with the word "any". 57 To my mind there is no material difference between use in the article, depending as one looks at the different translations, of the words "relating to", as opposed to the words, "ensuing from". 58 Subject to the matters referred to in para 21 of Mr Colinard's affidavit of 19 April 1999, each of the alternative translations use the word "will". 59 Nor do I see any material difference as between the different translations between, on the one hand, use of the words "regarding the performance of the stipulations of the present contract" and on the other hand the words "in applying the provisions of the present contract". 60 To my mind the matters referred to in para 21 of Mr Colinard's affidavit do not detract from the proper construction of article VI which in my view ought be read as similar in the extreme, to the clauses under consideration in both Gem Plastics and in FAI General Insurance. 61 Dr Birch, who appears for OCE, has drawn the Court's attention to Austrian Lloyd Steamship Co v Gresham Life Assurance Society Limited (1903) 1 King's Bench 249. For present purposes the discussion of that case which appears in FAI v Ocean Marine 41 NSWLR 121 suffices: "The insured sued in England upon a policy of life insurance. The insurer applied for a stay on the ground that the policy provided for submission of disputes to the courts of Budapest. The clause was in the terms: For all disputes which may arise out of the contract of insurance, all the parties interested expressly agreed to submit to the jurisdiction of the courts of Budapest having jurisdiction in such matters (at 249)". It as held that the parties had agreed not only to submit to the jurisdiction of the courts of Budapest, but also that they were obliged to refer disputes to those courts. This was said to follow from the language of the clause, it seems largely because the submission to jurisdiction was mutual". 62 In AKAI Pty Limited v Peoples Insurance Co Limited (1996) 188 CLR 418, Toohey, Gaudron and Gummow JJ at 444 cited the following passage from a decision of Fullager J in Compagnie des Messageries Maritimes v Wilson (1954) 94 CLR 577 at 587: "When parties to a contract say - all disputes between us shall be determined by such and such a tribunal', they are saying that, if a dispute arises between them, the claimant will seek a determination of it by the designated tribunal, and that the other party will not object to the jurisdiction of that tribunal. But they are also saying that, as between them, no other tribunal shall have jurisdiction to determine disputes". 63 Dr Birch has referred the Court in relation to the decision in Austrian Lloyd Steamship to the following passage which appears in the judgment of Lord Justice Romer:- "This is a simple point; and, though I can understand that different persons might take different views of it, I must say that to my mind the meaning of condition 24 is that contended for by the defendant. The question is this: does the condition merely mean that, if one of the parties to the contract is sued by the other in the Court of Budapest, he will not take any objection to its jurisdiction; or, does it mean that the parties mutually agree that, if any dispute arises under the contract it shall be determined by the Court in Budapest? Having regard to the nature of the contract and its language, I am of opinion that the latter construction is the correct one". [(1903) 1 KB at 251-252.] 64 To my mind article VI is an exclusive jurisdiction clause properly construed. 65 I turn then to the second of the questions referred to above, namely the reach of article VI. 66 The plaintiff emphasises its submission that in this case the supply contract, by calling for a performance bond, called up a series of contracts extending from ABS Gulf through NAB to BMCE to OCE to provide the guarantee itself and a contract ensuring loss under that guarantee between ABS and EFIC. 67 In IBM Australia v National Distribution Services Limited (1991) 22 NSWLR 466 the Court had occasion to deal with an arbitration clause in an agreement governed by the laws of New South Wales which was expressed to govern "any controversy or claim arising out of or related to this agreement or the breach thereof". 68 Clarke JA at 483 said: "The phrases in relation to' or related to' are of the widest import and should not, in the absence of compelling reasons to the contrary, be read down". 69 To my mind that construction is appropriate to be given to the words in article VI, "any dispute relating to the present contract" or "any dispute ensuing from the present contract". 70 A number of submissions have been addressed to the question of the nature of parties to and terms of the agreement alleged in paragraphs 16 through to 19 of the contentions. 71 During submissions directed to the question of whether or not there was in existence what he referred to as a tripartite agreement, Mr Dubler of counsel, who appears for EFIC, submitted that on no basis could an exclusive jurisdiction clause be read into an agreement which he asserted was alleged to exist between Gulf, OCE and BMCE. For one thing, on Mr Dubler's submissions, BMCE was simply not a party to the supply agreement. 72 Dr Birch in turn submitted that the suggestion of a tripartite agreement was misconceived. On his submissions the supply agreement bound Gulf and OCE. Arguably, pursuant to that agreement, there had come into existence the provision of a letter of credit by BMCE to OCE. On Dr Birch's submissions there is a third agreement which binds the Bank and was entered into between the Bank and BMCE when the Bank provided a stand-by letter of credit in favour of BMCE, being the back to back letter of credit. 73 It is necessary to return, it seems to me, to the way in which the matter is pleaded in the contentions in order to treat with the argument which was to the effect that there was pleaded and in existence an agreement between parties additional to Gulf and OCE, which agreement the Court would be required to look to in order to find or negate the proposition that the terms pleaded in paragraphs 17, 18 and 19 of the amended summons were to be implied. 74 I return to the reach of article VI in the contract and in particular the words "any dispute relating to the present contract" or "any dispute ensuing from the present contract" or "any dispute flowing from the present contract". To my mind any of those formulations embrace disputes as to existence of implied terms whereunder OCE is said to have been obliged to only call on BMCE to pay to it the sum of $US120,000 or any part of it in the event that Gulf wrongfully failed to perform some material contractual obligation arising under the supply contract or an obligation occasioning some loss or damage to OCE; or whereunder OCE is said to have been obliged not so to conduct itself in relation to Gulf as to cause a breach of the supply contract by Gulf, or whereunder OCE is said to have been obliged not to call on BMCE to pay all or any part of the $US120,000 to it in respect of any act or omission of Gulf caused or occasioned by the conduct of OCE.

[See the terms of paras 17, 18 and 19 of the contentions] 75 To my mind also so embraced are questions of breach of such suggested terms and plainly enough, it seems to me, the questions raised by clause 23 of the contentions which makes very plain that questions of the repudiation and acceptance of repudiation of the supply agreement are intimately and necessarily connected with questions of when and if and with what legal consequences, the surety agreement was brought to an end as to all rights and liabilities under it. 76 To do justice to the arguments put by Mr Dubler in support of Mr Cotman's submissions, and as I understand it accepted by Mr Cotman in the same regard, those submissions seek to separate out as different contracts the supply agreement and the suggested agreement to which Gulf, OCE, BMCE and/or the Bank were parties. The submission was that the mere existence, should the Court so hold, of an exclusive jurisdiction clause within the supply agreement, could not possibly, on any basis, be said to extend to other agreements albeit entered into by the plaintiff and OCE, if also party to those other agreements, were third parties, namely here BMCE and/or National Bank. 77 To my mind the submissions of Dr Birch on this area are of substance. His submissions are that the materials before the Court do not suggest there to have been any tripartite agreement nor any agreement between all four parties. On his submissions the dominant and operative question for present purposes is simply whether OCE acted wrongfully against Gulf when making its demand of BMCE, which in turn of course carried through when BMCE made a demand on the Bank. On Dr Birch's submissions the answer to that question can only be given by reference to the terms and conditions express and implied of the supply agreement. 78 To my mind it is plain that any of the implied terms sought to be propounded by Gulf in paragraphs 17, 18 and 19 of the contentions can only be imported by reference to the express terms and conditions of the supply agreement, going outside those terms only by applying usual principles dealing with implied terms. See Codelfa. 79 I turn next to the discretionary considerations which are the subject of submissions. 80 It is common ground, as I understand it, that the Court having held that article VI is an exclusive jurisdiction clause, the forum non conveniens test is not applied and the Court commences from the position that the parties should be held to their bargain. The proper approach is that taken in FAI v Ocean Marine 41 NSWLR at 569 and in particular in the passage earlier referred to under the heading "The exercise of jurisdiction". 81 In short, a stay should be granted unless strong cause for not doing so is shown by Gulf. Has then the plaintiff discharged the burden of proving strong cause for the Court not exercising its jurisdictions by granting a stay? 82 The plaintiff's submissions seeking to discharge this burden of proof involve the following matters. 83 The plaintiff suggests that there was certainly a central issue which arose as between the plaintiff and the first defendant, namely whether the particular documents proffered by OCE as its letters of credit in purported performance of the contract, or any of them, were confirmed irrevocable letters of credit referred to in the supply contract. The plaintiff's submissions in this regard followed submissions as to a number of suggested clear non-issues in the proceedings. 84 The submissions' structure was, firstly, to identify that the proceedings were brought pursuant to the supply agreement Gulf and OCE - claim for damages; secondly, the surety contract Gulf - OCE for restitution or damages; thirdly, the alleged surety contract Gulf - NAB - BMCE - OCE - for an injunction to restrain payment by NAB to BMCE; and fourthly, the insurance contract ABS - EFIC - the claim for indemnity in relation to the loss for wrongful call by OCE on BMCE under the surety contract. 85 Mr Cotman's submissions then were that there is no issue but that OCE called on BMCE to pay the surety bond to it as a result of Gulf's failure to deliver the meat called for under the supply agreement. The submissions were further that the terms of the supply agreement were not in issue. Of course it goes without saying it would seem that the proper construction of those terms may well be in issue. 86 I interpolate that unless and until the defences of the three defendants are before the Court it will not be possible to be entirely clear as to precisely what the issues to be raised by any or all of them are. Plainly enough the first defendant has not yet filed a defence. 87 Mr Cotman's submissions then include that there is no issue but that the only matter raised by Gulf as discharging it from its obligation to deliver the meat is the failure by OCE to put in place a letter of credit complying with the contractual requirements of the supply agreement. 88 A further suggested non-issue is put by the plaintiff in terms of the supply agreement as having required OCE to procure the irrevocable confirmed letter of credit in time for shipment to be made in conformity with the supply contract, it then being submitted that there is no issue but that OCE purported to issue the documentary letters of credit in conformity with the contract. 89 As to the suggested central issue, paragraphs 15 to 18 inclusive of the plaintiff's submissions have already been set out. The plaintiffs further submitted as follows: 'It is submitted that one reason the Court would not grant a stay is that if the contract that contains the exclusive jurisdiction clause itself calls for a matrix of other contractual arrangements, some of which will not be connected to the jurisdiction nominated in the contract, the Defendant cannot complain if the Plaintiff seeks to litigate those issues in another jurisdiction. That is the case here where the Supply Contract, by calling for a Performance Bond, calls up a series of contracts extending from ABS Gulf through NAB to BMCE top OCE to provide the guarantee itself and a contract ensuring loss under that guarantee between ABS Gulf and EFIC. In fact, the only issue in the case that is to be litigated wholly within the four corners of the Supply Agreement, is the claim for damages for breach of the Supply Agreement ABS Gulf against OCE. All other issues in the case fall to be litigated under or in relation to the Surety Agreement. While the obligation to produce a surety arises under the Supply Agreement, the Surety Agreement itself does not. The Surety Agreement is a four party arrangement between ABS Gulf, NAB, MBCE and OCE. Under that contract NAB at the request of ABS Gulf requested BMCE to go surety to OCE. BMCE did so by the correspondence annexed and translated in the affidavit of Mr Colinard of 26 May 1999, see Annexures 'A', 'B' and 'C' to that affidavit. A relevant issue is whether there are domestic Australian proceedings raising the same issues as the proceedings that it is sought to stay: see LEP International Pty Limited v LAN Traffic Expressed Service Inc (1987) 10 NSWLR 614 at 620. If the analysis of the issues of the case set out above is correct, there is no domestic Moroccan evidentiary issue that can concern the various people listed in Mr Hilmer's affidavit. That is because the only issue in contest is whether OCE produced an irrevocable confirmed letter of credit in satisfaction of its contractual obligations. It is common ground that no letter of credit was ever confirmed. Therefore the issue can only be whether what was supplied by OCE, via BMCE, to ABS Gulf was confirmable but was not confirmed for some reason unrelated to the position of OCE and BMCE. It is for that reason that Mr Colinard deposes that it is anticipated the principle evidentiary issue will be whether what was received by ABS Gulf could have been confirmed. As the Plaintiff would understand it, that is a matter for bankers other than BMCE. It is conspicuous that the BMCE expectation was of confirmation by an Australian Bank in that it requested that ANZ to confirm the documents in favour of ABS Gulf, which ANZ declined to do: see affidavit of McGuid, 14 October 1998, Annexure 'B' being ANZ letter of 19 September 1998 and McGuid affidavit of 17 September 1998 Annexure 'D' being ANZ letter of 28 August 1998 and the same affidavit Annexure 'I' being ANZ letter of 9 September 1998, each of which letters notifies ABS Gulf that ANZ declines to confirm the documents notwithstanding the request of BMCE. Prima facia the relevant population of bankers for the purposes of ascertaining whether the letters of credit were confirmable, though not confirmed, is Australian bankers. In relation to the proceedings concerning the surety sum and the insurance thereof, the most convenient forum for determination of those issues is Australia. As to the elements relevant for consideration in relation to forum non-conveniens the following matters are submitted to be relevant: (a) There is no issue of fact as to the only matter contended to be a breach of the Supply Contract that would justify seizure of the deposit being, the Plaintiffs' failure to deliver meat in conformity with the time schedules provided for in the Contract. (b) On the other hand, there is no issue that the contract provided for the First Defendant to supply a confirmable irrevocable letter of credit to the Plaintiff in sufficient time to allow shipment to Morocco in conformity with the contractual time stipulations in the Supply Contract. The only evidence before the Court is that while a great many documents were submitted by the First Defendant to the Plaintiff as letters of credit satisfying its contractual obligations no banker, including BMCE at its Paris branch, or ANZ in Australia (BMCE's local correspondent) would confirm the documents. In the absence of a Defence it is impossible to know whether OCE: (a) disputes that it was in breach of its obligation to supply a confirmable irrevocable letter of credit but contends that it was nonetheless entitled to seize the Performance Bond; or (b) asserts that what it supplied was a confirmable irrevocable letter of credit conforming to the contract, so that the Plaintiff was in breach of contract in failing to deliver. On either of the positions the Defendant might adopt there is no "Moroccan" issue. The first of the contentions must simply arise on a construction of the Supply Contract in order to determine whether the Plaintiff could be in breach of the contract by non-delivery notwithstanding that it had not been provided with a confirmable irrevocable letter of credit. On the second issue, that what was provided by OCE as a confirmable irrevocable letter of credit was such notwithstanding the Plaintiffs' failure to obtain confirmation of the document from any bank, that is an issue to be resolved according to the law and practices of bankers outside Morocco because it is to bankers in the exporters country that one would first look for confirmation and finance based on that confirmation. In short, it appearing from the affidavit of Mr Collinard that the law of Morocco is the same as the law of England and Australia as to the interdependent nature of the obligation to pay and the obligation to deliver goods under a contract for supply and the nature of the payment called for under the contract being described in uncontroversial and unambiguous terms, the only issue is whether there is some answer to the experience of the Plaintiff that the documents proffered by the First Defendant did not answer to contractual description in that no bank would confirm them. In short, in relation to the present claim in relation to the wrongful appropriation of the Performance Bond there is simply no pressing reason why that issue would not be determined in Australia. The determination of that issue will also affect two pieces of litigation which are wholly domestic: (a) the injunction against National Australia Bank paying the monies called for under the Performance Bond; and (b) proceedings against Export Finance Insurance Corporation, the Plaintiffs' insurer under a "unfair call" policy in relation to the Bond.' 90 Mr Dubler, in adding to those discretionary considerations and by and large supporting Mr Cotman's submissions, submitted that a further discretionary consideration which weighed strongly against the Court here staying the proceedings, involved the fact that the parties have taken as a given that the proceedings in so far as issues between the plaintiff and EFIC are concerned can on no conceivable basis be otherwise than dealt with by this Court. In those circumstances Mr Dubler raises a spectre, should these proceedings in so far as they involve the plaintiff, the first defendant and the National Bank be stayed. There is, it is submitted, a possibility that the courts of Morocco may find one way on the question of whether or not the letter of credit proffered complied with article VI, only to find that the very same issue but with other witnesses and evidence might have to be determined again in this jurisdiction, when and if the plaintiff's proceedings against the third defendant would be pursued. 91 To my mind, and having taken into account all of those discretionary considerations, the position on the evidence is that the plaintiff has not shown strong cause for the Court not to exercise its jurisdiction by granting a stay. 92 Whilst it is clear that the submissions opposing the grant of a stay seek to rely upon the several sets of issues now raised, there having been brought into existence following the supply agreement the so-called ancillary agreements or arrangements, the most significant matter is simply that the parties have solemnly and in writing, regardless of which of the translations be preferred, by article VI in the supply agreement clearly stated their mutual agreement that disputes arising from, ensuing from or relating to the supply agreement, are to be determined by the courts of Casablanca. 93 I am by no means satisfied that any of the discretionary factors put forward by Mr Cotman or Mr Dubler are sufficient to require the Court's discretion to be exercised otherwise than by granting a stay of the proceedings. It is common ground, as I have understood it, that the courts in Casablanca are competent to hear the proceedings in so far as the respective rights and obligations of Gulf and OCE are concerned. The position in so far as other parties are concerned and the contractual relationships between other parties are, subject to the question of EFIC, likely to be determined when the courts of Casablanca determine the issues of fact and law which separate Gulf from OCE. 94 There are a number of discretionary considerations which plainly, it seems to me, favour the courts in Casablanca hearing the matters which separate OCE and Gulf. Importantly of course the contract was written in French. French is a language regularly used in the courts of Morocco. The Laws of Morocco and the codes, civil code, commercial code and criminal code are published both in Arabic and French. Contracts under Moroccan Law may be written either in French or Arabic to be valid. The civil and commercial codes are either those codes established in Morocco during the French Protectorate or those which are drawn on essentially French sources. To the best of the knowledge of the Moroccan Consul there are no Moroccan lawyers in Australia nor any Australian lawyers with any expertise in Moroccan law. [See affidavit of B. Hillman of 13 May 1999, paragraphs 1-12]. 95 There is then as a discretionary consideration also, the question of what is the proper law of the supply contract. 96 The question of whether or not the proper law of the supply contract is the law of Morocco, I accept, may be reached in the first instance by inference from the form of the contract and its terms - this occurs where there is no express choice of law clause, as opposed to a choice of jurisdiction clause. I accept that the appropriate test is to ask whether in the contract: ". . . the parties have by its express terms or by necessary implication from the language used evinced a common intention as to the system of law by reference to which their mutual rights and obligations under it are to be ascertained" - see Amin Rasheed Shipping Corporation v Kuwait Insurance Co (1984) AC 50 at 61. 97 I accept that, if no inference can be drawn as to the unexpressed intention of the parties, then the proper law of the contract is to be determined as that system of law "with which the transaction has its closest and most real connection", re United Railways of Havana v Regla Warehouses Ltd (1960) Ch 52 at 91 and see Conflict of Laws in Australia, 6th edition by P E Nygh pp 292-301. 98 The principle is that where the parties to the contract have expressly chosen a foreign court or tribunal for the determination of disputes under the contract, then while not conclusive, this will usually raise a strong presumption that the proper law of the contract is the law of that foreign court or tribunal (see John Kaldor Fabric Maker v Mitchell Cotts Freight (Aust) Pty Ltd (1989) 18 NSWLR 172 at 187: "Prior to the decisions in James Miller & Partners Ltd v Whitworth Street Estates and Compagnie d'Armement Maritime SA v Compagnie Tunisienne, it was generally thought that an express provision in a contract referring disputes under the contract to arbitration in a particular country, or to resolution by reference to the laws of a particular country justified the conclusion that the law of that country was the proper law of the contract, either on the basis that the appropriate inference was that that was the actual intention of the parties, or on the basis that that provision justified the imputation to the parties of that intention: see Hamlyn (at 207-208, 212-213, 215 and 216); Spurrier v La Cloche [1902] AC 446 at 450; NV Kwik Hoo Tong Handel Maatschappij v James Finlay and Co Ltd [1927] AC 604 at 608 and 609-610 and Tzortzis v Monark Line A/B [1968] 1 WLR 406 at 414; [1968] 1 All ER 949 at 954. However, since the decisions in James Miller & Partners Ltd v Whitworth Street Estates and Compagnie d'Armement Maritime SA v Compagnie Tunisienne, it has been accepted in England (see, eg, Astro Venturoso Compania Naviera v Hellenic Shipyards SA (The "Mariannina") [1983] 1 Lloyd's Rep 12 at 14) that the effect of those decisions is to reduce the importance of an arbitration clause. As Lord Wilberforce put it in Compagnie d'Armament Maritime SA v Compagnie Tunisienne (at 600): "My Lords, for the reasons given I am of opinion that this language is too strong, too absolute. Neither authority nor commercial reality supports the necessity for so rigid a rule. An arbitration clause must be treated as an indication, to be considered together with the rest of the contract and relevant surrounding facts. Always it will be a strong indication; often, especially where there are parties of different nationality or a variety of transactions which may arise under the contract, it will be the only clear indication. But in some cases it must give way where other indications are clear."' 99 To my mind the proper law of the supply contract is the law of Morocco. That the proper law of the supply contract is the law of Morocco is of course of relevance as a discretionary consideration. 100 Since French is a language regularly used in Moroccan courts, plainly enough there would not in Moroccan courts be the same requirements concerning interpretation of the contract as would have to occur in Australia through translators. An example of the difficulties in different translations has already been referred to in relation to the proper construction of article VI. 101 The contract, namely the supply contract, the written contract of 22 May 1998, was entered into in Morocco. The principal place I accept, of performance of the contract, is Morocco. BMCE is a Moroccan corporation, OCE is a Moroccan corporation. A further discretionary consideration is that proceedings on the contract in Morocco are able to be conducted in the language of the contract. 102 Returning briefly to the implied terms upon which the plaintiff founds earlier referred to. 103 Dr Birch submitted that effectively the plaintiff, in seeking to make good its implied terms case, is seeking to read into article V after the words "Moroccan Bank" on the second line, words to the effect "and that OCE will not call upon the bank under the instrument unless there has been a breach by the supplier of the terms of the contract". It seems to me that that is a submission of substance. In short, the undertaking of Gulf to deliver to OCE referred to in article V is, and its proper construction and any implications to be imported in relation to that matter are, the essential gravamen and basis of the matters put in para 17 to 19 of the amended summons. 104 It is necessary then to deal with two particular further topics and costs. The first relates to the position which is to obtain in relation to the existing interlocutory regime in place by the injunctions against the bank. The second relates to the discrete question of the way forward as between the plaintiff and EFIC. 105 Following the reasons above given, it will be apparent that the Court is disposed to stay the proceedings permanently in so far as the plaintiff's proceedings against the first defendant is concerned. 106 I have no doubt but that the injunctions presently extant against the bank require to be continued until further order, the spirit and intent of the short minutes of order being that those injunctions will continue up to a point in time when there is an application to discharge the injunctions, again depending as the Moroccan proceedings are determined one way or the other. 107 I will hear from the parties in a moment on the subject of costs but the question which counsel can see I have had some requirement for assistance on your submissions is the formal order as far as the proceedings against the National Australia Bank are concerned.

[Following further submissions, orders were made on 30 July 1999 staying the proceedings against the first defendant permanently and dealing with costs and related ancillary matters.] ********

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