This is exactly what the parties forgot to do in Presstek Europe Ltd v Multi-Digital De Impresion SL (QBD, 13 March 2012) – although one of them claimed it thought the agreement incorporated a choice-of-law provision from a related contract.
Presstek and Multi-Digital had entered into a non-exclusive distribution agreement which stated that English law governed all disputes except any that involved injunctive relief, and that the London International Court of Arbitration was to have jurisdiction. The parties then entered into a contract for the sale of three machines by Multi-Digital to Presstek; there was no choice-of-law or jurisdiction clause. Presstek (a UK company) claimed that Multi-Digital (a Spanish company) had failed to perform the sales contract and that English law governed. Multi-Digital successfully challenged the jurisdiction of the English courts: even if (and that appears to have been a big if) the sales contract did implicitly incorporate the distribution agreement’s choice-of-law and jurisdiction provisions, it was clear that the parties had not intended those provisions to apply to all disputes. Most disputes were to be arbitrated in London under English law, but not all disputes, and nothing involving injunctive relief. The actual dispute between the parties involved an injunction, so it fell into the gap area to which English law did not apply and the English courts did not have jurisdiction. Better to have dealt with choice of law and jurisdiction squarely in the sales contract.