Naslov
Damages as a Remedy for the Breach of Choice of Court Agreements Under EU Law

Autori
Zgrabljić Rotar, Dora

Vrsta, podvrsta i kategorija rada
Radovi u zbornicima skupova, cjeloviti rad (in extenso), znanstveni

Izvornik
CONTRACTUAL ISSUES IN PRIVATE INTERNATIONAL LAW: Conference Proceeding Book / Erkan, Mustafa ; Özel, Sibel - Istanbul : Pravni fakultet Sveučilišta Marmara, 2018, 283-300

ISBN
978-6057909503

Skup
Consumer Contracts in Private International Law

Mjesto i datum
Istanbul, Turska, 11.10.2018

Vrsta sudjelovanja
Predavanje

Vrsta recenzije
Međunarodna recenzija

Ključne riječi
choice-of-court, damages, breach of choice-of-court agreements

Sažetak
The aim of this paper is to explore whether damages are a possible and suitable remedy for the breach of an exclusive choice of court agreement under EU law, in particular under the Brussels I Recast Regulation and under the Hague Choice of Court Convention. The basis to claim damages for a breach of choice of court agreements lies in the understanding of the legal nature of those agreements. In common law traditions, choice of court agreements are usually conceptualized as having a predominantly substantive nature. Thus, damages for the breach of exclusive choice of court agreements are recoverable in front of English courts which is evident from an extensive case law on the matter. On the other hand, in most civil law systems choice of court agreements are defined as procedural contracts. There is also a third understanding, which the author finds most convincing, that the choice of court agreements are complex contracts performing a dual function – both substantive and procedural. The author of this paper is aware of only one reported case on this issue in the EU Member States that belong to the civil law countries – the judgment in which damages for the breach of choice of court agreement were awarded was rendered by the Spanish Supreme Court in the Sogo USA Inc v Angel Jesus case. However, even that case was outside the scope of application of the Brussels I Regulation. The question of whether damages are a plausible remedy under EU law, therefore, still remains open. The claim could be successful if the court finds that the exclusive choice of court agreement is a mixed or hybrid agreement with both substantive and procedural functions and that the private interests of the parties prevail over the doctrine of mutual trust between the courts and institutions of the EU MS which was held as one of the cornerstones of the Brussels regime up to now. In this paper, the author presents arguments for an affirmative stand on the issue of awarding damages for the breach of an exclusive choice of court agreements.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

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