114 X Corp submitted that the relevant question in this proceeding concerns the status of X Corp. As senior counsel for X Corp put it, the question is whether the person before the Court is, by reason of its status, answerable for the alleged non-compliance.
115 I prefer the submissions of X Corp on this issue. Choice-of-law rules do not exist in isolation from curial proceedings. Rather, they operate to select the rules of decision that a Court will apply to resolve a dispute. The question for this Court does not concern the status of Twitter Inc. If the Commissioner were to seek to bring enforcement proceedings against a respondent in the name of Twitter Inc, then s 7(3)(a) would likely operate to select the law of Delaware to determine whether Twitter Inc is a juristic person, capable of being sued. At least on the evidence adduced in this proceeding, it appears that Delaware law would answer that Twitter Inc is no longer an extant legal person. This hypothetical example is simply designed to show that the law that is selected by a choice-of-law rule is necessarily chosen to be applied in a concrete dispute. There is no illogicality or inconsistency in the proposition that proceedings with different issues will adopt the law of different places, because they may be answering different questions.
116 There is a further pragmatic reason that supports this conclusion, although it was not the subject of submissions, and so I do not attach any real weight to it. That reason is that if the choice-of-law rule were to select the law of somewhere other than the place where the company before the Court is incorporated, inconvenient results may follow. Consider a case in which the law of an extraneous jurisdiction provided that a Nevada corporation became the universal successor of a company in that extraneous jurisdiction. If that other company had obligations under Australian law, selecting the law of the place where the original company was incorporated as relevantly determining "status" would have the result that Australian law might recognise a transfer of the original company's obligations under Australian law to the Nevada company. Such a result could be inappropriate in circumstances where there was no connection between the original company and the Nevada company. This potential result simply shows that a choice-of-law rule that may seem appropriate in cases of consensual cross-border merger may be entirely inapposite if generalised to apply to cross-border conflicts of laws on the question of universal succession. It reinforces that, in such a case, the true issue is whether a given company is subject to a particular obligation by reason of its status, which is to be determined by the law of the place of its incorporation. But for this consideration to carry weight, it would need to have been the subject of considered submissions from both sides.
