Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/31

 transnational contract has been concluded at a face-to-face meeting at the place of residence or business of one of the parties."

82 As to (iii), the place of performance of the contract, the data emanates from servers in Washington State, including the SSA (whether it comes through the Steam website or the Steam Client: ts 93) although there is also use of servers located in Australia and elsewhere. The authentication process occurs in Washington State. Subscriber complaints and enquiries are dealt with in Washington State. All client information is held on servers in Washington State. Payment is made in United States dollars. It is received on servers in Washington State. In contrast with these strong links with Washington State, the video games are purchased, downloaded and played all over the world. Even in this litigation alone, performance of the contract occurred in Tasmania, Victoria, and New South Wales.

83 As to (iv), the nature and subject matter of the contract, although the video game is played in various different jurisdictions in Australia and abroad, a significant aspect of the core subject matter is the ability for multi-player engagement which can take place anywhere in the world. The SSA is a standard form contract. The nature of that contract favours a single proper law (Washington State) rather than a proper law of many different jurisdictions throughout the world.

84 For these reasons, even but for the terms of the contract that provide otherwise, the proper law of the contract for the supply of goods or services by Valve to a consumer is the law of Washington State.

Section 67(b) prevents Valve relying upon Washington State law

85 The ACCC submitted that if the law with the closest and most real connection to the SSA was the law of Washington State then s 67(b) had the effect that Division 1 of the Australian Consumer Law would still apply. The submission by the ACCC (ts 72, 151) was as follows:

(1) in the absence of s 67(b), the provisions of Division 1 would apply to the supply under the SSA (this was common ground: ts 181); and

(2) the choice of law clause in the SSAs purports to substitute Washington State law for the provisions of Division 1 or, alternatively, has the effect of substituting Washington State law in light of Mr Dunkle's evidence that Washington State law (i) does not prohibit a clause of an agreement making non-refundable the subscriber purchases of