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Austrian Supreme Court Rules on the Validity of a Jurisdiction Clause Based on a General Reference to Terms of Purchase on a Website
By Biset Sena Günes, Senior Research Fellow at the Max Planck Institute for Comparative and International Private Law, Hamburg
Recently, on 25 October 2023, the Austrian Supreme Court (‘OGH’) [2 Ob 179/23x, BeckRS 2023, 33709] ruled on whether a jurisdiction clause included in the terms of purchase (‘ToP’) was valid when a written contract made reference to the website containing the ToP but did not provide the corresponding internet link. The Court held that such a clause does not meet the formal requirements laid down under Article 25 of the Brussels I (recast) Regulation and, hence, is invalid. The judgment is undoubtedly of practical relevance for the conclusion of international commercial contracts that make reference to digitally available general terms and conditions (‘GTCs’), and it is an important follow-up to the decisions by the Court of Justice of the European Union (‘CJEU’) in the cases of El Majdoub (C-322/14, available here) and Tilman (C-358/21, available here).
Who can bite the Apple? The CJEU can shape the future of online damages and collective actions
Written by Eduardo Silva de Freitas (Erasmus University Rotterdam), member of the Vici project Affordable Access to Justice, financed by the Dutch Research Council (NWO), www.euciviljustice.eu.
Introduction
In the final weeks leading up to Christmas in 2023, the District Court of Amsterdam referred a set of questions to the CJEU (DC Amsterdam, 20 December 2023, ECLI:NL:RBAMS:2023:8330; in Dutch). These questions, if comprehensively addressed, have the potential to bring clarity to longstanding debates regarding jurisdictional conflicts in collective actions. Despite being rooted in competition law with its unique intricacies, the issues surrounding the determination of online damage locations hold the promise of illuminating pertinent questions. Moreover, the forthcoming judgment is expected to provide insights into the centralization of jurisdiction in collective actions within a specific Member State, an aspect currently unclear. Recalling our previous discussion on the Dutch class action under the WAMCA in this blog, it is crucial to emphasize that, under the WAMCA, only one representative action can be allowed to proceed for the same event. In instances where multiple representative foundations seek to bring proceedings for the same event without reaching a settlement up to a certain point during the proceedings, the court will appoint an exclusive representative. This procedural detail adds an additional layer of complexity to the dynamics of collective actions under the WAMCA.
One, Two, Three… Fault? CJEU Rules on Civil Liability Requirements under the GDPR
Marco Buzzoni, Doctoral Researcher at the Luxembourg Centre for European Law (LCEL) and PhD candidate at the Sorbonne Law School, offers a critical analysis of some recent rulings by the Court of Justice of the European Union in matters of data protection.
In a series of three preliminary rulings issued on 14th December and 21st December 2023, the Court of Justice of the European Union (‘CJEU’) was called upon again to rule on the interpretation of Article 82 of the General Data Protection Regulation (‘GDPR’). While these rulings provide some welcome clarifications regarding the civil liability of data controllers, their slightly inconsistent reasoning will most likely raise difficulties in future cases, especially those involving cross-border processing of personal data.
News
New Canadian Conflicts Text
The Irwin Law “Essentials Series” is a collection of texts about Canadian law aimed at a broad audience: it includes law students and also lawyers, judges and academics. It has been quite successful over the past twenty years. In 2024 Irwin Law was acquired by University of Toronto Press. It has continued the Essentials Series and the use of the Irwin Law imprint.
It has now published the third edition of Conflict of Laws written by Professor Stephen G.A. Pitel of Western University, Canada. The second edition was published in 2016 and so this edition updates almost a decade of activity, mainly from courts across Canada. The major change is that the chapter on declining jurisdiction has been reorganized and updated in light of the Supreme Court of Canada’s decisions in Douez v Facebook, Inc (2017) and Haaretz.com v Goldhar (2018). All chapters have been updated to reflect new decisions, legislative changes and recent scholarship.
More information is available here. For those outside Canada, the book is a clear and accessible source of comparative conflict of laws analysis.
English and EU Perspectives on Hague 2019: Hybrid Seminar at UCL Laws
Ugljesa Grusic (UCL) has kindly shared the following invitation with us.
On 24 March 2025, at 6pm UK time, Marta Pertegás (Maastricht University; University of Antwerp; a fulltime member of the Permanent Bureau of the Hague Conference on Private International Law between 2008 and 2017) and Alex Mills (UCL; a Specialist Editor of Dicey, Morris and Collins on the Conflict of Laws, with particular responsibility for, inter alia, the rules on the recognition and enforcement of foreign judgments) will give a seminar on The 2019 Hague Judgments Convention – English and EU Perspectives at the Faculty of Laws, University College London. The event will be delivered in a hybrid format and the readers of the blog are welcome to join either in person or on line.
The seminar is part of the International Law Association (British Branch) Lecture Series and will be chaired by Ugljesa Grusic.
On 1 July 2025, the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters will enter into force in England and Wales. This historic regime establishes a general treaty basis for the recognition and enforcement of civil judgments between Convention States, supplementing the existing national rules and the Hague Choice of Court Convention 2005. Perhaps most significantly, it will provide common rules for the recognition and enforcement of judgments from England and Wales in EU Member States, and conversely, for EU Member State judgments to be recognised and enforced in England and Wales, to some extent filling a ‘gap’ created by Brexit.
This seminar will address the significance of this development from both an English and EU perspective, examining the main features of the 2019 Convention and considering the opportunities and challenges it presents.
To register, please follow this link.
U.S. District Court’s Order in the Venezuelan Deportees Case Was Not Extraterritorial
The following post was kindly provided by Hannah Buxbaum, Vice President for International Affairs, Professor of Law and John E. Schiller Chair, Indiana University, and is cross-posted on tlblog.org
As was widely reported yesterday, the Trump administration permitted two planes carrying Venezuelan deportees to continue on their way to El Salvador after receiving a judicial order to turn the flights back to the United States. A story in Axios quotes an administration official who explains that they were not in fact “actively defying” the judge—the order just came too late, since the planes were already out of U.S. airspace. This seems to be an extraterritoriality argument, suggesting that the judge lacks authority to order an action to take place outside U.S. borders.
The administration has this completely wrong. The judge is ordering the administration to take action inside the United States—that is, to instruct the planes to turn around. That instruction will in turn cause something to happen elsewhere (the pilots will change course), but that doesn’t make the order impermissibly extraterritorial. This is exactly the same the basis on which courts in garden-variety civil disputes order parties subject to their jurisdiction to procure evidence or turn over assets that are located abroad. Moreover, since the planes were reportedly over international waters at the time the order was entered, compliance would not have required any actions by a foreign actor or within the territory of another state—in other words, it wouldn’t have created a conflict of laws.
Now that the deportees are already in El Salvador, that picture is more complicated, since local authorities there might refuse to take action. Even the existence of such a conflict, though, doesn’t mean that Judge Boasberg’s order exceeds his authority. It remains to be seen whether any of the other justifications the White House offered up for ignoring that order are any more compelling, but the argument that it didn’t apply once the planes had left the United States is certainly not.
For further leading expert input on extraterritoriality see one of our previous posts here.