A choice of forum clause is an article that states that the parties declare a specific court competent to rule on a dispute between the parties. Such a clause occurs in agreements between two Dutch parties, but is particularly interesting when it comes to an agreement with a foreign party. If you do a lot of business with foreign parties, it is usually desirable to include in your terms and conditions that the Dutch court has jurisdiction, to prevent a trip abroad for legal proceedings.
But there are rules for how a choice of forum clause is included in terms and conditions and how the terms and conditions are subsequently provided. If these rules are not followed properly, the choice of forum clause may not apply between the parties. Then you will fall back on the rules of the law and your company may still have to go to court abroad in the event of a dispute.
The EU judge (the Court of Justice) has recently ruled on how the general terms and conditions, including a choice of forum clause, can be provided. This case concerned a choice of forum clause in general terms and conditions, where the general terms and conditions were not sent directly to the other party. Instead, the terms and conditions could be consulted and downloaded via a hyperlink, which was included in the agreement.
The Court of Justice thus had to rule whether the choice of forum clause applied, now that it was included in general terms and conditions referred to in the agreement by means of a hyperlink. In doing so, the Court examined in particular whether the processing of a hyperlink in the general terms and conditions could be seen as a method of (valid) communication of the general terms and conditions.
The Court of Justice ruled as follows: if the agreement refers to the general terms and conditions and they can be viewed and printed out by means of a hyperlink, then the general terms and conditions were actually communicated to the contracting party and the choice of forum clause therein thus applies between the parties. In addition, it is important that the hyperlink works and that the general terms and conditions can be opened in a relatively simple way.
Based on this Court ruling, it has thus been clarified that a choice of forum clause is also valid if it is included in general terms and conditions provided via a hyperlink in the agreement. It is therefore not always necessary to attach the general terms and conditions to the agreement as an attachment or to send them by e-mail. The fact that a hyperlink is also an option can be especially useful if a company changes the terms and conditions regularly. But make sure that the hyperlink works properly!
Do you have questions about the above? Please feel free to contact our office.
Emmaly Hartman
lawyer
.svg)
