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“CLICK WRAPPING” CHOICE OF COURT AGREEMENTS IN THE BRUSSELS I REGIME

Lloyd's Maritime and Commercial Law Quarterly

“CLICK WRAPPING” CHOICE OF COURT AGREEMENTS IN THE BRUSSELS I REGIME Andrew Dickinson * Johannes Ungerer ** El Majdoub v CarsOnTheWeb The World Wide Web, serving as a means of international communication, significantly facilitates cross-border transactions. This being a world of “click happiness”, at the same time, the qualities of fluidity and rapidity which attract online purchasers arguably create an embedded transactional imbalance in favour of the online trader, who may seek to impose standard terms accessible on a separate webpage through the device of requesting customers to click a box to confirm acceptance. This process is known as “click wrapping”. As many—including lawyers—would testify, there is a temptation to click to proceed when one would not be willing to sign, but the legal consequences may be manifestly disadvantageous. In the recent case of El Majdoub , 1 the Court of Justice of the European Union (“ECJ”) was called upon to consider whether an international choice of court agreement concluded online through click wrapping was effective under the successor to the Brussels Convention 2 —the Brussels I Regulation (now the Recast Regulation) 3 —to confer exclusive jurisdiction on the chosen court. The facts of the case are typical of transactions of this kind. 4 The claimant, Mr El Majdoub, is a car merchant domiciled in Germany. As he had done several times in the past without difficulties, he purchased a nearly new car online through the website “carsontheweb.de”, operated by a German company, CarsOnTheWeb.Deutschland GmbH (“Cars Germany”). After the buyer had paid, and shortly before delivery was to take place, the seller purported to cancel the contract on the pretext that the car had been damaged. Mr El Majdoub, who considered the price to be very favourable, commenced proceedings against Cars Germany before the Landgericht in Krefeld, where delivery was due to take place, seeking transfer of possession and ownership. Thus far, the claimant presented a purely domestic case. However, the defendant advanced two submissions which introduced an international dimension. First, the defendant insisted that it was a member of an international group of companies, and that the contracting party was in fact its Belgian parent company. Consequently, it argued that it had been wrongly named as the defendant. 5 That argument was rejected by the Landgericht. 6 Secondly, the defendant maintained that the Landgericht Krefeld was not the internationally competent court. The defendant claimed instead jurisdiction of the Belgian court at the seat of its parent company, relying on a choice of court provision 1. El Majdoub v CarsOnTheWeb.Deutschland GmbH (Case C-322/14) [2015] ECLI:EU:C:2015:334; [2015] 1 WLR 3986. 2. (Brussels) Convention on jurisdiction and the enforcement of judgments in civil and commercial matters 1968 (as amended), [1998] OJ C27/1. 3. Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L 12/1 (“Brussels I Regulation”), now recast as Regulation (EU) No 1215/2012 of 12 December 2012 [2012] OJ L 351/1 (“Recast Regulation”). 4. El Majdoub , [10–11]. 5. Ibid , [12–13]. 6. Ibid , [16]. 16

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