Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/27

 of the closest and most real connection: Morris JHC, "The Proper Law of a Contract: A Reply" (1950) 3 Int'l & Comp LQ 197.

68 The question of "closest and most real connection" is a question which is usually further deconstructed when considering the "conflict of laws". Indeed, as Dr Mann said at 438, at a high level of generality the "whole of the conflict of laws is concerned with the question: which, in a given situation, is the legal system closely or most closely connected with the matter in issue?"

69 Without further deconstruction into the nature of the enquiry, a difficulty with the second stage of the test (the "closest and most real connection" with the transaction) is that different factors will often point in different directions. Some of those factors are said to be of little weight. Some are said to be of substantial weight. But without a governing principle it is difficult to determine why some matters are more important for a close connection than others. For instance, one factor relied upon by the ACCC was the presence of proxy servers in Australia which create a "mirror" of the data contained on servers in Washington State. But how much weight should this factor have in determining the closest and most real connection with the transaction? Without the subsequent conduct by Valve which gave the consumer a choice of proxy server for download, at the time of contracting it is very unlikely that any consumer would know, or could reasonably know, of the existence of Australian proxy servers. And if this factor were ultimately the decisive matter that made the difference, would the proper law of the series of transactions subsequently change if the proxy servers were relocated or abandoned?

70 Professor Briggs has argued that in the assessment of the different weight given to different connecting factors, the "common law developed an unarticulated reflection of how far, if at all, each allowed the court to read something of the parties' minds as regards intended proper law": Briggs A, The Conflict of Laws (3rd ed, Oxford University Press, 2013) 242. The reference to reading something of the parties minds has an echo of the words of Lord Wright in Mount Albert Borough Council v Australasian Temperance and General Mutual Life Assurance Society Ltd [1938] AC 224, 240:

71   It may be that, eventually, the common law rules concerning the proper law of the contract will come full circle and the test for “closest and most real connection” will be seen as