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Conflict of laws
If:
- (a) the proper law of a contract for the supply of goods or services to a consumer would be the law of any part of Australia but for a term of the contract that provides otherwise; or
- (b) a contract for the supply of goods or services to a consumer contains a term that purports to substitute, or has the effect of substituting, the following provisions for all or any of the provisions of this Division:
- (i) the provisions of the law of a country other than Australia;
- (ii) the provisions of the law of a State or a Territory;
the provisions of this Division apply in relation to the supply under the contract despite that term.
56 In its written submissions, Valve submitted that the proper construction of s 67 required that "the guarantee in s 54 has no application where … any 'supply' takes place pursuant to a contract the proper law of which is [not the law of any part of Australia]".
The meaning of the "proper law of a contract"
57 The terms of s 67(a) are very similar to those of s 8(2) of the Insurance Contracts Act 1984 (Cth) which were considered by the High Court of Australia in Akai Pty Ltd v People's Insurance Co Ltd [1996] HCA 39; (1996) 188 CLR 418. In Akai, a Singaporean insurer had refused a claim by an insured New South Wales company. The insured commenced proceedings in New South Wales and in England. In the New South Wales proceeding, the insured relied upon s 54 of the Insurance Contracts Act which restricted the circumstances in which the insurer could refuse payment of the claim. The insurer sought to have the New South Wales proceedings stayed pending the determination of the English action. The insurer relied upon cl 9 of the policy which contained a choice of English law and an English jurisdiction clause.
58 The High Court considered the effect of s 8(2) of the Insurance Contracts Act which provided that:
… where the proper law of a contract … would, but for an express provision to the contrary … be the law of a State or of a Territory in which this Act applies … then, notwithstanding that provision, the proper law of the contract is the law of that State or Territory.
59 The High Court also considered the effect of s 52 of the Insurance Contracts Act which provided that:
