Agrégateur de flux

The conference aims to cast light on the latest developments regarding commercial dispute resolution. It will focus on the recent case law in the area of European civil procedure and on the forthcoming changes in the field of EU private international law. This last topic will be devoted, in particular, to the imminent entry into force of the Hague Convention of 30 June 2005 on Choice of Court Agreements, the recast of the EU Insolvency Regulation, the revision of the European Small Claims Procedure, and Regulation No 655/2014 establishing a European Account Preservation Order procedure.

Further information on the conference available here.

Catégories: Droit international général, Flux des sites DIP, Flux européens

Of little birds, language, and choice of court in consumer contracts

GAVC - mar, 06/02/2015 - 07:20

I have reported elsewhere (In Dutch – I am hoping for some time at some point to write something similar in English; see in particular para 23) on the fact that the conjunctive ‘or’ has been dropped in all language versions of Article 19 of the Brussels I recast:

The provisions of this Section may be departed from only by an agreement:

which is entered into after the dispute has arisen;
which allows the consumer to bring proceedings in courts other than those indicated in this Section; or
which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same Member State, and which confers jurisdiction on the courts of that Member State, provided that such an agreement is not contrary to the law of that Member State.

This contrast with the similar proviso on choice of court in employment contracts, Article 23:

The provisions of this Section may be departed from only by an agreement:

which is entered into after the dispute has arisen; or
which allows the employee to bring proceedings in courts other than those indicated in this Section.

I have suggested, with others, that much as I do not understand why the conjunctive has been dropped, its deletion, combined with its being kept in Article 23, means that for consumer contracts, choice of court pre the dispute are now simply impossible under the Regulation, while being maintained for employment contracts. I was also puzzled as to why such an important change was not discussed at all in the run-up to the recast.

A little bird at the European Commission (one high up the conflicts tree) now tells me that what has happened in reality, is quite different. Reportedly the ‘juristes-linguistes’ took it upon them to correct an apparent linguistic mistake in the previous version of the Regulation (indeed one going back to the Brussels Convention): there ought not to be a conjunctive when listing more than one, non-cumulative alternative. That would also explain the difference with Article 23, where there are only 2 alternatives.

This clears up the legislative intent. It does not to me, at least, clear up the linguistic confusion. We may have been grammatically wrong under the previous format (I cannot judge the correctness of that in all these language versions). However at least we were legally certain. Being fully respectful of grammatical correctness myself (punctuation jokes never fail to amuse me), I am not sure which one to prefer in this instance.

Geert.

Catégories: Droit international général, Flux Belges et Lux, Flux des sites DIP, Flux européens