Common use of Judicial Decisions Clause in Contracts

Judicial Decisions. Minor changes in the English version do not seem to have been considered sufficient reason to re-examine in depth case law developed earlier in certain jurisdictions. For example, in 2018, the Federal Court of Australia confirmed pre-existing case law established under the 1929 Warsaw 169 ICAO Doc 9775, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air), Montreal, 10 – 28 May 1999, volume I, Minutes, Montreal 1999, p. 188. 170 Ibid., p. 188-189. 171 Ibid., p. 189. 172 Ibid., p. 236: […] it related to the exercise in jurisdictions to deal with time limits on the basis that there might be aspects which would render it fraudulent or inequitable. […] many Courts did indeed exercise that jurisdiction. In terms of private international law, in terms of limitations of action, the matter was viewed as a procedural one, as a clas- sification to be determined by lex fori. It was not without significance that that language had been used for the last seventy years in Article 29 of the Warsaw Convention, as well as in its successors. […] no doubt that, if any action came up before a Court under circumstances where the claimant had been precluded from bringing suit as a result of imprisonment, kidnapping or matters of that kind, then a Court, in the exercise of its inherent jurisdiction, in exercise of lex fori, would come to the conclusion that time did not begin to run until the claimant were free to be available’. Convention, and held that the time limits of the 1999 Montreal Convention were unbreakable.173 Similar decisions can be found in other jurisdictions, such as in the United States174 and in Russia.175 However, the possibility of suspending or interrupting the two-year limit is still discussed in certain jurisdictions. In Spain, for example, the question arose of whether this provision was to be considered as falling within the category of ‘prescripción’ or ‘caducidad’.176 Although the highest Court has not officially put an end to this controversy, the Court of Appeal of Madrid held in 2015 that – in light of the foreign Warsaw and Montreal jurisprudence, the doctrine, and hopes of achieving uniformity – the time 173 See, Bhatia v. Malaysian Airline System Berhad, (2018) FCA 1471.