Information Technology Reference
In-Depth Information
solution that makes sense from the technological and legal point of view needs to
be found
14
.
What we said so far shows the necessity for the parties to state in their SLA or
in another contract which court will be competent to judge their disputes
15
(Leible
2006). This possibility is recognised by the Regulation, and art. 23(1) in fact states
that “If the parties, one or more of whom is domiciled in a Member State, have
agreed that a court or the courts of a Member State are to have jurisdiction to settle
any disputes which have arisen or which may arise in connection with a particular
legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction
shall be exclusive unless the parties have agreed otherwise.” In the above example,
SuperICTResources
and
SaaSforyou
can decide that, for instance, the court of
Amsterdam or that, more generally, Dutch courts
16
will be competent, and no other
courts in principle could judge the disputes arising from the contract(s) between the
parties.
The reader should be aware that this clause
17
shall be in writing or evidenced
in writing, pursuant to Art. 23(1)(a)
18
and, with this regard, paragraph 2 of Art. 23
points out that “Any communication by electronic means which provides a durable
record of the agreement shall be equivalent to 'writing'”. This means that “a contract
stored in a computer as a secured word document (i.e. a read-only document or
document with entry password), or concluded by email and a click-wrap agreement
falls within the scope of Article 23(2)
19
” (Wang 2008). As regards click-wrap agree-
ments, “it seems to be preferable that the party receives the text of the choice-of-
court clause (including the other provisions of the contract) separately, for instance
14
It has been pointed out in the literature that “there is still a latent complexity and a necessity
for citizens or small enterprises, as either claimants or defendants, to have access to intricate
legal analysis if they are to be fully aware if their rights and the potential business risks and
transactions costs.” (Storskrubb 2008)
15
It has been pointed out in the literature that “a well-drafted contract, which has factual links
with more than one country, will contain a choice of jurisdiction or court clause. This is
often referred to as an “exclusive” clause, providing that all disputes between the parties
arising out of the contract must be referred to a named court or the courts of a named
country.” (Wang 2008).
16
In this case the national rules of civil procedure will apply to determine which judge will
be
in concreto
competent.
17
The choice-of-court can be a clause in the SLA (or other contract) or a standalone agreement.
The requisite of the written form apply to both cases.
18
Unless the following point (c) is applicable: “in international trade and commerce, in a form
which accords with a usage of which the parties are or ought to have been aware and which
in such trade or commerce is widely known to, and regularly observed by, parties to
contracts of the type involved in the particular trade or commerce concerned.” The
agreement made by clicking on an 'I agree' button in a webpage seems to be the case in
point, provided that it is common practice to conclude contracts in this way on the Internet.
19
“This provision covers the agreement on a choice-of-court clause by exchanging e-mails.
E-mails provide a durable record because they are saved either in the mailbox or on the hard
disk and because they can be printed out on paper. An electronic signature according to the
rules of the Signature Directive is not required.” (Leible 2006)
