Jurisdiction and choice of law rules over electronic consumer contracts: The nexus between the concluded contract and the targeting activity

Abstract

A foreign business is subject to the jurisdiction of a consumer’s domiciled country and the law of the consumer’s habitual residence, provided that the business has targeted at the consumer’s home country and the consumer contract falls within the scope of such targeting activities under Brussels Ibis and Rome I Regulations. However, it is unclear whether the contract must be concluded from a distance and has a causal link with the targeting activity. The CJEU concludes that the contract does not have to be concluded at a distance or have a causal connection with the targeting activity. This is also the case in China in which consumer choice of law rules, while not requiring a causal link, adopt a lower threshold by examining the dis-targeting test. By contrast, American jurisdiction rules over consumer contracts adopt a higher threshold, which requires a casual connection between the consumer’s claim and the business’s contact with the consumer’s state. Although the EU, USA and China have different private international law rules over consumer contracts, commonalities do exist in certain aspects. Based on a comparative study, this article argues that the fact that a contract is concluded at a distance or has a nexus with the targeting activity is a relevant factor, among other factors, to determine the targeting test. In this regard, Brussels Ibis and Rome I need a minor amendment.

Setting Sail with the Rome I Regulation, Article 5 and Cross-Border Contracts of Carriage

“…As per Article 5, the governing law for a contract of carriage shall be determined based on the country where the carrier has its habitual residence or the country where the place of business through which the contract was made is located, in case the carrier does not have a habitual residence. In a nutshell, the transnationalist pattern of party autonomy seeks to bridge the conflicting requirements of the internationalist and substantive law paradigms by striking a balance (Ahmed, 2018;Chen, 2022). The agreement on the applicable legislation is a legally enforceable contract between the parties, not just an agreement of facts.…”