Forum selection clauses & choice of law clauses in international online B2B relationships Dr. Simone van der Hof TILT - Tilburg Institute for Law, Technology, and Society Tilburg University

Relevance of party autonomy Provide predictability and legal certainty with respect to: substantive law (e.g. choose the law most suitable for online contracts) private international law US – different approaches under personal jurisdiction & choice of law EU – rules are more clear cut

Relevance of party autonomy  These clauses should not be unnecessarily restricted and (highly) necessary restrictions must be clear and cognizable  These clauses should not be unneessarily restricted and (highly) necessary restrictions must be clear and cognizable

Forum selection clauses in the EU and US Both systems allow electronic forum selection clauses - (in principle) no formal requirements >EU: in writing can be electronically; or common practice or internationally recognised custom Diversity of conditions and rules amongst EU and US >Not every US court recognises FS clauses (yet)/no obligation to enforce such clauses >EU - exclusive jurisdiction contacts (article 22 BR) >US - choice of court must explicitly exclusive >US - some state laws hold specific conditions or prohibitions >US - forum non convenience, fundamental public policy, fraud, unconscionability etc.

Choice of law clauses in the EU and US Both systems allow electronic CL clauses Under both systems CL clause can later be changed to choose a more appropriate law Internationality requirement can undermine predictability >US: also interstate relationships, yet substantial relationship is required >EU/US: international online B2B contracts are international unless.... Chosen law must be state law? Validity of CL clauses  US: chosen law or lex fori  EU: chosen law

The End rechten.uvt.nl/simone