VIC Constructing Clause in Agreement Complying with Indian and Australian Law?

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Brown Sugar

Member
21 December 2018
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Hello Lawyers,

I have a clause in my draft software agreement with an Indian software development company which states;

Quote:

5 Choice of Law; Venue; Limitation of Actions:

This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Australia and the parties consent to the sole and exclusive jurisdiction of the Federal Court of Australia for any dispute arising out of this Agreement. No action by ToXSL or Client arising under this Agreement may be brought at any time more than seven (7) years after the facts occurred upon which the cause of action arose.

Unquote

Question: They (Indian software Development Company) now want this to be written as both Indian Law and Australian Law as the software is developed in India for the consumer in Australia. I'm not sure how this clause should now be written, added and/or amended so that it covers both Laws and no confusion should there be any issue arise in the future. Would appreciate your views and any suggestions, please.

Thank you!
 

Rob Legat - SBPL

Lawyer
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16 February 2017
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I'll admit I know nothing about the laws of India. Given both countries inherited systems of government from England, there's probably a structural similarity. However, that doesn't mean they're compatible - especially to a practical extent. What may be legal under Indian law may not be in Australia (and vice versa). Accordingly, having the agreement written as governed under both legal systems is a recipe for disaster. Pick one. It should be obvious which is in your favour.

I'd also suggest you look at putting in a dispute resolution clause which is referable to international commercial arbitrator. Here's a link to an Australian one: https://acica.org.au/

Their site also contains clauses you can use for the contract: https://acica.org.au/arbitration-clauses/
 

Tim W

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28 April 2014
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The point of a choice of law clause is that the parties have agreed
which, and the only, law will apply to the deal.
You can't have certainty unless you have only one "choice of law".

What they are trying to do is
  • get themselves the choice of law, but not you; and
  • employ you under Indian laws, and pay and conditons,
    even though you are in Australia; and
  • sham contract with you, and evade their obligations such as sick leave and superannuation,
    under the law of Australia
  • make it impossible very hard indeed for you to be able to bring an employment law action against them.
So, I'll call it.
First, you need the case specific advice of an employment lawyer in Australia.
Going by what you say here, you're being done over.

Second, if you sign the deal without that advice, or contrary to it, then you are making a very poor choice.