A dispute arose over misuse of confidential information of CIT (an English company) by UPD, (a Texan company) which was alleged to be in breach of an NDA. The terms of the NDA were agreed by an email exchange, but the parties opted not to include a choice of law and jurisdiction clauses as they could not agree one.
The High Court granted CIT permission to serve claims on UPD out of the jurisdiction. It considered that CIT had a good arguable case and that the NDA was made in both England and Texas. The parties had expressly agreed not to incorporate a choice of law and jurisdiction clause and it would be wholly artificial to determine the place of the contract by applying the traditional acceptance rules depending on which party happened to be responsible for sending the fully executed document. This meant that there was sufficient connection to the English jurisdiction to give leave to serve out.
This case shows that it is perfectly possible to agree to disagree over the jurisdiction clause, in which case an English party will be able to apply to the English courts – and one imagines that the foreign party will be able to apply to its courts to take jurisdiction. Having said that, the case does, of course, go against the long-standing rule for instantaneous communication that a contract is made where acceptance is received. So it is possible that this High Court decision is not the last word on the matter.
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