Consumer Protection and Jurisdiction

Abstract

Abstract Chapter 10 examines the validity and enforceability of forum selection (jurisdiction) and choice of law (applicable law) clauses in consumer contracts in the US and in the EU, comparing two differing approaches to finding a balance between business’ interests, transactional efficiency, and consumer protection in e-commerce. The chapter explains the US jurisprudence, which has established a presumption in favour of the validity of jurisdiction and choice of law clauses in the absence of fraud, undue influence, or overweening bargaining power (US Supreme Court in Bremen and Carnival Cruise Lines v Shute). It contrasts the contractual analysis in the US, which may hold certain forms of clauses in adhesion contracts unenforceable, depending on the applicable state law with the stricter public policy approach in the EU, which implements consumer protection law through its private international law rules in the Brussels I Regulation and the Rome I Regulation. It examines the EU rules with respect to the types of consumers and consumer contracts to which the protective jurisdictional rules apply. The chapter critically analyses the jurisprudence on jurisdiction in internet and e-commerce cases and incisively conceptualizes the legal approaches and latest developments on both sides of the Atlantic. This includes the directing/targeting line of cases after Pammer/Alpenhof in the EU.