Information Technology Reference
In-Depth Information
characteristic of the contract is the provision of the service, the criterion to take
into account is that of the principal place of business. In this case it is likely that
SuperICTResources
is established in Germany and the service is provided from
there, therefore German law will be applicable.
The solution would not be different even if the Grid/Cloud provider has its prin-
cipal place of business outside the EU. Although the Rome Convention is a source
of European law (Quigley 1997), its applicability is universal, and as a conse-
quence, pursuant to Art. 2, “Any law specified by this Convention shall be applied
whether or not it is the law of a Contracting State.” If
SuperICTResources
would be
established, for instance, in Israel, the laws of this country would be applicable to
the agreement with the Dutch company
SaaSforyou
. The same conclusion can be
reached for contracts concluded after 17 December 2009, day of entry into force of
the abovementioned Regulation 593/2008, provided that Art. 4(1)(b) sets forth that
“a contract for the provision of services shall be governed by the law of the country
where the service provider has his habitual residence.”
8
Having said that, it is advisable that the parties state in the agreement which
law governs the contract and the contractual relationship between them. Which law
will be applicable, i.e. the law of the country of the provider or of the customer (or
hypothetically the law of a third country), is a matter of negotiation between the
parties. For the technology provider it is undoubtedly more logical to insist for the
adoption of 'his' law with the aim to simplify the management of his customers and
of possible disputes and litigation.
The same applies as regards the individuation of the competent court or, in
more general terms, of the system adopted to solve the disputes arising between the
parties. These have the possibility, in fact, to decide that all future disputes between
them will be solved out of court, i.e. with an Alternative Dispute Resolution (ADR)
proceeding. This means that a private referee, or a group of referees, will judge the
dispute and find a solution. It would go beyond the scope of this chapter to provide
the reader with an in-depth analysis of ADR systems, therefore we will focus only
on the jurisdictional (i.e. before a State judge) dispute resolution mechanisms. At
European level the most relevant legal source is Regulation 44/2001 on jurisdiction
and the recognition and enforcement of judgments in civil and commercial matter.
9
This Regulation allows assessing which court is competent to judge the disputes
between the Grid/Cloud provider and the customer.
Going back to the above example, let us imagine that the negotiators of
SuperICTResources
and
SaaSforyou
forgot to include in the SLA a provision
8
For the notion of 'habitual residence' pursuant to Art. 19(1) of the Regulation, please see
supra
. It is interesting to highlight here that paragraph 3 of Art. 19 states that “For the
purposes of determining the habitual residence, the relevant point in time shall be the time
of the conclusion of the contract.”
9
Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters [OJ L 12, 16/1/2001,
p. 1-23].
