Update 22 December 2022 see additional comment by Marion Ho-Dac here.
Update 29 November 2022 see here for questions between Marco Farina and myself re the CJEU’s discussion 28-31 of the applicability at all of Lugano, in light of the Withdrawal Agreement.
The CJEU last week held in C-358/21 Tilman v Unilever, the context of which I reviewed here. Krzysztof Pacula has initial analysis here and also refers to the application of the consent for choice of court issues in Ebury Partners.
One of the parties’ (Unilever’s) GTCs are contained on a website, and their existence is ‘flagged’ in the written main contrac, without there bring a tickable box that click-wraps the agreement. Does that suffice to bind the parties as to the GTC’s choice of court (in favour of the English courts)? Note the courts were seized pre-Brexit; the UK’s Lugano troubles are not engaged.
The CJEU answers exactly along the lines I suggested in my earlier post: no impeding of commercial practice; need for the contracting party relying on the clause to have drawn the attention to the GTCs; need for that clause to be durably consultable and storable; finally it is the national court’s task to verify the formation of consent in these factual circumstances. That there is no box that can be ‘ticked’ is not conclusive .
All in all a welcome support for commercial choice of court.
EU Private International Law, 3rd ed. 2021, Heading 2.2.10.