Berrocal v Warner Chappell Music Ltd
A New York choice of law clause in licence agreements concerning musical copyright could not be construed as also being an exclusive New York jurisdiction clause. The English court had jurisdiction to deal with the matter without expert evidence on New York law where the parties had not identified any difference between the approach to be taken under New York law and English law.
The defendant applied for an order that the English court did not have jurisdiction to deal with the claimant's claim concerning licence agreements in relation to the copyright in various song catalogues.
The claimant and defendant were successors in title to seven licence agreements made between 1934 and 1945. The defendant was domiciled in England. Each licence provided that "This [contract/agreement] shall be construed and shall always be subject to enforcement pursuant to the laws of the State of New York and of the United States of America." Both parties produced expert evidence on New York law.
The issue was whether the clause was just a choice of law clause, or whether it was also a forum selection clause. The defendant argued that the use of the word "always" meant that it was an exclusive New York jurisdiction clause.
The expert evidence did not add anything of substance. Under English law the court would have to decide what a reader would reasonably understand the clause to mean. It did not appear that a New York court would approach it in a different way. In any event, it was for the parties to identify any New York law which differed from UK law, and then its existence could be either accepted or disputed. To the extent that there was no difference the court did not need expert evidence. Assuming that the court was satisfied that differences existed, its duty was to construe the documents with those differences in mind. The requirement in Regulation 593/2008 art.12 that the law applicable to a contract should govern the matters listed in the article, including interpretation, did not rule out other concepts being governed by other laws. In the circumstances, the clause was not an exclusive jurisdiction clause and the English court had jurisdiction.