46 Article 4.5 of the merger agreement provided –
4.5 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other entity or person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
47 Finally, Article 4.8 of the merger agreement provided that it was governed by the laws of Nevada, with an endeavour to avoid the possibility of renvoi –
4.8 Governing Law and Jurisdiction
This Agreement and all matters arising out of or relating to this Agreement, are governed by and shall be construed in accordance with the laws of the State of Nevada without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Nevada.
Summary of the parties' submissions
48 In order to give focus to the evidence about the content of foreign law, I will summarise the cases advanced on behalf of the parties on the question whether X Corp was required to comply with the reporting notice.
The submissions of X Corp
49 There were two layers to X Corp's submissions on whether it was required to comply with the reporting notice. The first layer directed attention only to the terms of ss 56(2) and 57 of the Online Safety Act. X Corp submitted that, as a matter of construction, the "person" whom s 57 requires to comply with the notice must be the same person who was capable of complying with the notice given under s 56(2). That is to say, the Act assumes that the person referred to in s 57 is the same person as the provider who received the notice under s 56(2). X Corp submitted that, on and from 15 March 2023, Twitter Inc ceased to be a person, and therefore ceased to be a provider of a social media service. It was submitted that Twitter Inc therefore lacked capacity to comply with the notice, and that X Corp was not obliged to prepare any report in Twitter Inc's place, as X Corp was not the same person as the provider to whom the notice was issued. In perhaps over-simple terms, X Corp's primary submission was that ss 56(2) and 57 do not call for any choice-of-law analysis — strict correspondence between the s 56(2) "provider" and the s 57 "person" is required.
50 X Corp's alternative submission was that, if ss 56(2) and 57 are subject to a choice-of-law analysis, then the question whether X Corp was subject to the obligation to respond to the reporting notice was governed by the law of Nevada. It was submitted that under Nevada law X Corp did not take on the legal obligation of Twitter Inc to respond to the
