German Article on Abusive Choice of Court Clauses in European Law


Stefan Leible and Erik Roeder (both Bayreuth) have published an article on abusive choice of court clauses in European law in the German legal journal Recht der Internationalen Wirtschaft (RIW 2007, 481-487): Missbrauchskontrolle von Gerichtsstandsvereinbarungen im Europäischen Zivilprozessrecht

An abstract has been kindly provided by the authors:

In their article, Leible and Roeder analyze whether and to what extent the European Procedural Law allows to review unfair forum selection agreements. In particular, the authors try to answer the question whether an agreement under Art. 23 of the Brussels I Regulation (Council Regulation 44/2001) may be declared void by a national court because in concluding the agreement one party has abused its dominant economic position.

In the first part of the article, Leible and Roeder refute the arguments put forward to reject any review of jurisdiction agreements. As the authors show, the competence of the ECJ to interpret the Brussels Regulation does not foreclose such a review because the ECJ has not decided on the issue so far. A review of choice of forum-clauses would neither put legal certainty at risk, nor would it discriminate against courts of other Member States.

In the second part of the article, Leible and Roeder argue for a review of forum selection clauses within the scope of Art. 23 of the Brussels I Regulation. An agreement on jurisdiction that was obtained by abuse of economic predominance does not truly reflect the autonomous will of the parties. The possibility of a review by the courts of the Member States allows to settle individual cases in accordance with equity. In order to ensure legal certainty, the notion of “abuse of economic predominance” must be defined autonomously by the ECJ.

1 reply
  1. Andrew Dickinson says:

    The suggestion that the European Court of Justice should be asked to define “abuse of economic predominance” and, no doubt, other factors (e.g. “fraud”) which may be deployed by national courts “according to equity” to explode jurisdiction clauses is a chilling one, and should be rejected. I would have thought that the fact that the Regulation specifically defines situations (insurance, consumer and employment) contracts in which the supposed (inequality) of bargaining power is such as to justify greater restrictions on party choice strongly suggests that, in other cases, the only requirement should be “consent” manifested meeting the formal requirements set out in Art. 23.1. This may require the ECJ to define, in due course, certain substantive aspects of “consent” (so that, for example, a party may assert that a signature is not his or was not authorised according to applicable rules of private international law) but this should not extend to situations in which the formal requirements are complied with and a party does not deny that (in the case of an agreement in writing) the signature was his or was duly authorised, and (perhaps) does not assert that there was a vitiating factor specifically affecting the jurisdiction agreement. The separability of jurisdiction agreements, and the right of the court chosen to determine issues arising between the parties as to the “purity” of party autonomy should be preserved, and is entirely consistent with the principle of legal certainty with which the ECJ is currently in thrall. Rather than working out a means of defeating “abusive” choice of court clauses, efforts would better be expended on avoiding abusive torpedo proceedings designed to undermine jurisdiction agreements and on ensuring that defendants who have legitimate grounds for contesting jurisdiction are able to have them determined swiftly by the court seised of the dispute, without the need to defend the case on its merits.

Comments are closed.