Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/28

 involving, at its core, questions of construction of the contract (ie the meaning which reasonable persons in the positions of the parties would give to the words of the contract). But the basis upon which s 67(a) of the Australian Consumer Law was enacted, and the decision of the majority of the High Court in Akai, requires the question of closest and most real connection to be considered as an objective question, separate from the question which is concerned with construction of the contract. It must be approached independently from the construction question, as an evaluative exercise which takes into account all of the relevant matters connected with the transaction with the exception of those matters prohibited by s 67(a).

The law which has the closest and most real connection to the SSA is Washington State

72 The various versions of the SSA contained jurisdiction and choice of law clauses which chose the jurisdiction and proper law as Washington State. For instance, cl 14 of the 2011/2012 SSA provided as follows:

73 Both the ACCC and Valve proceeded on the assumption that this Court should disregard each of (i) the choice of law, (ii) the choice of jurisdiction, and (iii) the deeming of place where the SSA was made. This assumption was consistent with the approach of the majority in Akai that the words "but for an express provision to the contrary" in the Insurance Contracts Act "embrace those provisions of the contract from which, or by recourse to which, it would be determined that the parties to the contract had selected or chosen a proper law which was not the law of a State or a Territory" (436). Otherwise, as the majority concluded, there would be "an extreme artificiality in first, as required by the statute, disregarding that express choice, and then proceeding by analysis of other provisions in the contract to infer the making by the parties of a choice of governing law" (440).

74 The assumption by the ACCC and Valve is also supported by the history of amendment of s 67. When the Australian Consumer Law was enacted, the predecessor provision to s 67,