EU Distance Contracting Richard Warner

Right of Withdrawal  The consumer has the right to withdraw from the contract for seven days after (roughly) the supplier’s completion of its obligations.  Reimbursement: “the supplier shall be obliged to reimburse the sums paid by the consumer free of charge. The only charge that may be made to the consumer because of the exercise of his right of withdrawal is the direct cost of returning the goods.”

Consumer Waiver of Rights  Consumer’s may not waive rights granted to them by the Distance Contracting Directive.  “Member States shall take the measures needed to ensure that the consumer does not lose the protection granted by this Directive by virtue of the choice of the law of a non- member country as the law applicable to the contract if the latter has close connection with the territory of one or more Member States.”

 In the US and the EU, choice of law/forum clauses are enforced in the B2B context where the parties are presumed to have equal bargaining power  In the B2C context, there is no such presumption. In the US, the clauses are enforced if not unreasonable. Choice of Law/Choice of Forum

 Carnival Cruise Lines is typically cited in support of this point.  But note: Carnival Cruise Lines is an admiralty case and federal law applies.  States may refuse to enforce a choice of law clause ( Jones v. GNC Financing, 211 F.3d 495 (9 th Cir. 2000), refusing to enforce a Pennsylvania choice of law clause against a California franchisee) Carnival Cruise Lines

 Choice of law/forum clauses are enforced only if they favor the consumer  Choice of law of a non-EU country is unenforceable if: (1) chosen law is less favorable to the consumer, and (2) the transaction is most closely connected to an EU country Italy, for example, deems any choice of forum other than the consumer’s domicile unfair and will not enforce it In the EU