International Commercial Law Blog

European Union approves the Convention of 30 June 2005 on Choice of Court Agreements

H.E. Mr Maris Klišans, Ambassador of the Republic of Latvia, signed and deposited the instrument of approval of the 2005 Choice of Court Convention on behalf of the European Union, as the Republic of Latvia currently holds the rotating presidency of the Council of the European Union. The approval of the 2005 Choice of Court Convention by the European Union will trigger the Convention’s entry into force on Thursday 1 October 2015. Twenty-eight States (all EU Member States except Denmark — as well as Mexico, which was the first State to accede to the Convention on 26 September 2007) will then be bound by the Convention.

This is the third out of four instruments of the Hague Conference (after the 2007 Hague Convention and Protocol on Maintenance) to which the European Union becomes a party as a Regional Economic Integration Organisation. In addition, the Apostille, Child Abduction, and Intercountry Adoption Conventions are also in force in all EU Member States.

The Convention promotes trade by clarifying the rules governing international trade disputes, where the parties involved have chosen a competent court. In detail, the Convention provides clarity on: jurisdiction rules, which court is competent and on the recognition and enforcement of judgments given by courts in the countries which apply the Convention. In practice, this will ensure that EU companies have more legal certainty when doing business with firms outside the EU: they will be able to trust that their choice of court to deal with a dispute will be respected by the courts of the countries that have ratified the Convention, and that the judgment given by the chosen court will be recognised and enforced in the countries which apply it.

The Hague Convention of 30 June 2005 on Choice of Court Agreements is aimed at ensuring the effectiveness of choice of court agreements (also known as “forum selection clauses“) between parties to international commercial transactions. By doing so, the Convention provides greater certainty to businesses engaging in cross-border activities and therefore creates a legal environment more amenable to international trade and investment.

The Choice of Courts Convention was drawn up by a group of countries and trading blocks such as the EU, the US, Canada, Japan, China, Russia, all of them members of the Hague Conference on Private International Law that develops multilateral legal instruments. The Convention therefore has the potential to become a worldwide legal basis for the recognition and enforcement of judgments resulting from a choice of court agreement between the EU and these countries. It was signed by the EU in 2009.

The reform of the so-called Brussels I Regulation paved the way for the ratification of the Choice of Courts Convention. This regulation determines which national court has jurisdiction in cross-border cases involving EU firms and how court judgments issued in one EU country are recognised and enforced in another. The reform of these EU-internal rules will ensure coherence with the Convention.

Approval of the Principles on Choice of Law in International Commercial Contracts

On 19 March 2015, the Members of the Hague Conference on Private International Law formally approved the Principles on Choice of Law in International Commercial Contracts. The Principles, which also comprise a comprehensive Commentary, were developed by the Working Group on the Choice of Law in International Contracts (chaired by Professor Daniel Girsberger, Switzerland) and unanimously approved by the Members of the Hague Conference.

The Principles affirm party autonomy as a basis for the choice of law in international contracts and they strengthen legal certainty and predictability in international commercial transactions. The Principles will thus be important to facilitating reform and harmonisation initiatives concerning the rules applicable to international trade.

For more information on the Principles, see HCCH | Choice of Law in International Contracts.

ISO 27018 sets data protection standards for the cloud

In July 2014, the International Organization for Standardization (“ISO”) and International Electrotechnical Commission (“IEC”) published ISO/IEC 27018 (ISO 27018), a code of practice that sets forth standards and guidelines pertaining to the protection of data consisting of “personally identifiable information” processed by public cloud service providers.

ISO/IEC 27018 is the first International Standard that focuses on protection of personal data in the cloud. Although only a few months old, the new standard should finally give cloud users confidence that their service provider is well-placed to keep data private and secure.

ISO/IEC 27018 specifies certain minimum types of security measures that cloud providers should adopt, if applicable, including encryption and access controls. The cloud standard also requires cloud providers to implement security awareness policies and make relevant staff aware of the potential consequences (for staff, the cloud provider and the customer) of breaching privacy and security rules.

As the first-ever standard that deals with the protection of personal data for the cloud, ISO/IEC 27018 has the following key objectives:

  1. Help cloud service providers that process personally identifiable information to address applicable legal obligations as well as customer expectations
  2. Enable transparency so customers can choose well-governed cloud services
  3. Facilitate the creation of contracts for cloud services
  4. Provide cloud customers with a mechanism to ensure cloud providers’ compliance with legal and other obligation

ISO/IEC 27018 provides a practical basis to induce confidence in the cloud industry. At the same time, the public cloud industry will have clear guidance in order to meet some of the legal and regulatory concerns of its clients.

ISO/IEC 27018:2014 establishes commonly accepted control objectives, controls and guidelines for implementing measures to protect “personally identifiable information” in accordance with the privacy principles in ISO/IEC 29100 for the public cloud computing environment.

In particular, ISO/IEC 27018:2014 specifies guidelines based on ISO/IEC 27002, taking into consideration the regulatory requirements for the protection of “personally identifiable information” which might be applicable within the context of the information security risk environment(s) of a provider of public cloud services.

ISO/IEC 27018:2014 is applicable to all types and sizes of organizations, including public and private companies, government entities, and not-for-profit organizations, which provide information processing services as “personally identifiable information” processors via cloud computing under contract to other organizations.

The guidelines in ISO/IEC 27018:2014 might also be relevant to organizations acting as “personally identifiable information” controllers; however, “personally identifiable information” controllers can be subject to additional “personally identifiable information” protection legislation, regulations and obligations, not applying to “personally identifiable information” processors. ISO/IEC 27018:2014 is not intended to cover such additional obligations.

As a guiding principle, ISO/IEC 27018 standards and guidelines facilitate the retention by the cloud service customer of authority to determine the scope of any use and handling of its “personally identifiable information”. The following controls and implementation guidelines set forth in ISO/IEC 27018 as generally applicable to cloud service providers processing “personally identifiable information”:

  1. Customer and end user control rights:
    1. A cloud service customer should have the means to enable the individual to whom “personally identifiable information” relates to access, correct and/or erase such “personally identifiable information”;
    2. “personally identifiable information” should not be processed for any purpose except pursuant to the instructions of the cloud service customer;
    3. “personally identifiable information” should not be used for marketing or advertising purposes without the customer’s consent;
    4. Temporary files and documents associated with “personally identifiable information” processing should be erased or destroyed by a cloud services provider within a specified period;
  2. Restrictions on disclosure to or access of 3rd parties to “personally identifiable information”:
    1. Law enforcement requests for disclosure of “personally identifiable information” must be disclosed to a cloud service customer (unless such disclosure is prohibited by law);
    2. Other requests for disclosure of “personally identifiable information” should be rejected except to the extent authorized by a cloud service customer;
    3. Data relating to disclosures of “personally identifiable information” to third parties should be recorded;
    4. Subcontractors should be disclosed in advance by a “personally identifiable information” processor;
    5. Unauthorized access to “personally identifiable information” or processing equipment or facilities resulting in the loss, disclosure or alteration of “personally identifiable information” should be disclosed to a cloud service customer;
    6. Anyone (including cloud service provider employees) associated with the processing of “personally identifiable information” should be subject to a confidentiality obligation;
  3. Treatment of Media Containing “personally identifiable information”:
    1. A number of additional restrictions should be maintained for information security purposes, with respect to, inter alia, the creation of hard copy materials displaying “personally identifiable information”, data recovery or restoration efforts, “personally identifiable information” stored on transportable media, transmission of “personally identifiable information” over public networks, and user IDs for access to stored “personally identifiable information”.

ICC releases revised International Code of Direct Selling

Since 1937, when the first Code of Advertising Practice was issued, ICC has produced, and successively revised, global sets of ethical rules, covering all main marketing disciplines. The ICC Code of Direct Selling forms part of that comprehensive ICC normative system.

In 2006 many of the marketing codes were consolidated into one document, the Consolidated ICC Code of Advertising and Marketing Communication Practice, revised in 2011. As direct selling is primarily a method of distribution, the Direct Selling Code remains a stand-alone document; however, by reference it is clearly linked to the Consolidated Code, which is the recognized global reference point for responsible marketing communications.

The ICC Code of Direct Selling was first published in 1978 and followed the already then well-established ICC policy of promoting high standards of ethics in marketing via self-regulatory codes, intended to complement the existing frameworks of national and international law.

Like its predecessor (2007), this edition has been developed in close co-operation with the World Federation of Direct Selling Associations (WFDSA). That has ensured the Code is based on the best available expertise, and kept apace with changes in practice and direct selling techniques. The WFDSA has also adopted a world code of conduct applicable exclusively to members of direct selling associations. There is conformity in substance between the ICC Code and the industry code. The ICC Code is to be followed by all involved in direct selling.

Direct selling, as defined by the ICC Code, “refers to the selling of products directly to consumers, generally in their homes or the homes of others, at their workplace and other places away from permanent retail locations, where the direct seller may explain or demonstrate products.

The Direct Selling Code is an instrument for self-discipline, but may also be used by the courts as a reference document within the framework of applicable legislation. The ICC Code is also able to fill in the gap in countries which have not created direct selling laws.

The Direct Selling Code spells out responsible conduct towards consumers, such as the credo not to exploit a consumer’s age, that product demonstrations should be complete with regard to price and also covers recruitment practices in the direct selling industry.

Recent changes include a section on referral selling stipulating that consumers should not be induced to make a purchase based on the assumption of a reduced price for customer referrals. The ICC Code also requires that direct selling companies communicate the contents of the Code with their direct sellers and that compliance with the standards of the Code should be a condition for membership in the company’s distribution system. In keeping with the principle of truthfulness, the ICC Code specifies that “descriptions, claims, illustrations or other elements relating to verifiable facts should be capable of substantiation.

See the ICC International Code of Direct Selling

See the Consolidated ICC Code of Advertising and Marketing Communications Practice

UNCITRAL publishes its endorsement of the UNIDROIT Principles of International Commercial Contracts 2010

The United Nations Commission on International Trade Law (UNCITRAL) has published the Report on its forty-fifth session (25 June – 6 July 2012) at which it decided to endorse the UNIDROIT Principles of International Commercial Contracts 2010.

See Report of the United Nations Commission on International Trade Law, forty-fifth session (25 June-6 July 2012)

San Marino Accedes to United Nations Convention on Contracts for the International Sale of Goods

With its accession to the United Nations Convention on Contracts for the International Sale of Goods (“CISG”), San Marino becomes the 78th State Party to the Convention. The Convention will enter into force for San Marino on 1 March 2013.

The adoption of the CISG by San Marino has taken place in the context of a joint initiative between the Government of San Marino and the UNCITRAL Secretariat aimed at modernizing the law of international sale of goods and of electronic transactions in that country.

The United Nations Convention on Contracts for the International Sale of Goods provides an equitable and modern uniform framework for the contract of sale, which is the backbone of international trade in all countries, irrespective of their legal tradition or level of economic development. The CISG is therefore considered to be one of the core conventions in international trade law.

The CISG, which has been adopted by a large number of major trading countries, establishes a comprehensive code of legal rules governing the formation of contracts for the international sale of goods, the obligations of the buyer and seller, remedies for breach of contract and other aspects of the contract.

See 1980 – United Nations Convention on Contracts for the International Sale of Goods (CISG)

New ICC Arbitration Rules will come into force on 1 January 2012

On 12 September 2011, the International Chamber of Commerce (ICC) has launched a revised version of its Rules of Arbitration with the aim of better serving the existing and future needs of businesses and governments engaged in international commerce and investment.

The new ICC Arbitration Rules (the “Rules”) will come into force on 1 January 2012 and take into account current requirements and developments in arbitration practice and procedure, as well as developments in information technology, since they were last revised in 1998.

The revision process began in 2008 and was undertaken by a small drafting committee of up to 20 members, supported by a wider task force of 202 members and a consultation process with ICC national committees around the world and the ICC Commission on Arbitration. The new Rules were approved in Mexico City by the ICC World Council on 11 June 2011.

Additions to the Rules include provisions to address disputes involving:

  • multiple contracts and parties;
  • updated case management procedures;
  • the appointment of an emergency arbitrator to order urgent measures; and
  • changes to facilitate the handling of disputes arising under investment treaties and free trade agreements.

Other amendments have also been made to ensure that the arbitral process is conducted in an expeditious and cost-effective manner.

Unless parties stipulate otherwise, the new ICC Arbitration Rules will automatically apply to all arbitrations under the auspices of the International Chamber of Commerce commenced after 1 January 2012, save for the emergency arbitrator provisions.

In answer to the growing demand for a more holistic approach to dispute resolution techniques, the new Rules are published in a booklet that also includes the ICC ADR Rules, which provide for mediation and other forms of amicable dispute resolution. Both sets of Rules define a structured, institutional framework intended to ensure transparency, efficiency and fairness in the dispute resolution process while allowing parties to exercise their choice over many aspects of procedure.

See ICC Rules of Arbitration

New edition of UNIDROIT Principles of International Commercial Contracts adopted

The Governing Council of UNIDROIT at its 90th session formally adopted on 10 May 2011 the third edition of the Principles of International Commercial Contracts (“UNIDROIT Principles 2010”).

The UNIDROIT Principles 2010 contain new provisions on restitution, illegality, plurality of obligors and obligees, and conditions, while with respect to the text of the 2004 edition the only significant changes made relate to the Comments to Article 1.4.

The new edition of the UNIDROIT Principles consists of 211 Articles (as opposed to the 120 Articles of the 1994 edition and the 185 Articles of the 2004 edition) structured as follows: Preamble (unchanged); Chapter 1: General provisions (unchanged); Chapter 2, Section 1: Formation (unchanged), Section 2: Authority of agents (unchanged); Chapter 3, Section 1: General provisions (containing former Articles 3.1 (amended), 3.2, 3.3 and 3.19 (amended)), Section 2: Ground for avoidance (containing former Articles 3.4 to 3.16, 3.17 (amended), 3.18 and 3.20, and a new Article 3.2.15), Section 3: Illegality (new); Chapter 4: Interpretation (unchanged); Chapter 5, Section 1: Content (unchanged), Section 2: Third Party Rights (unchanged), Section 3: Conditions (new); Chapter 6, Section 1: Performance in general (unchanged), Section 2: Hardship (unchanged); Chapter 7, Section 1: Non-performance in general (unchanged), Section 2: Right to performance (unchanged), Section 3: Termination (containing former Articles 7.3.1 to 7.3.5, 7.3.6 (amended) and a new Article 7.3.7), Section 4: Damages (unchanged); Chapter 8: Set-off (unchanged); Chapter 9, Section 1: Assignment of rights (unchanged), Section 2: Transfer of obligations (unchanged), Section 3: Assignment of contracts (unchanged); Chapter 10: Limitation periods (unchanged); Chapter 11, Section 1: Plurality of obligors (new), Section 2: Plurality of obligees (new).

Mere use of a website by the trader does not in itself trigger application of the rules of jurisdiction for the protection of consumers in other Member States

The European Court of Justice in its Judgment in Joined Cases C-585/08 and C-144/09 Peter Pammer v Reederei Karl Schlüter GmbH & Co. KG and Hotel Alpenhof GesmbH v Oliver Heller explains the rules of jurisdiction in European Union law that are applicable to consumer contracts, in relation to services offered on the internet.

The European Union regulation on jurisdiction in civil and commercial matters (see Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) provides that actions against a person domiciled in a Member State must, as a general rule, be brought in the courts of that State. It also provides that cases resulting from a contractual relationship may be decided by the courts for the place of performance of the contractual obligation. In the case of consumer contracts, however, rules protecting the consumer apply. If the trader “directs its activities” to the Member State in which the consumer is domiciled, the consumer can bring proceedings before the courts of the Member State of his domicile and he can be sued only in that Member State.

In its judgment, the Court states that mere use of a website by a trader in order to engage in trade does not in itself mean that its activity is “directed to” other Member States, which would trigger application of the protective rules of jurisdiction in the regulation. The Court holds that, in order for those rules to be applicable in relation to consumers from other Member States, the trader must have manifested its intention to establish commercial relations with such consumers.

In order to determine whether a trader whose activity is presented on its website or on that of an intermediary can be considered to be “directing” its activity to the Member State of the consumer’s domicile, within the meaning of Article 15(1)(c) of Regulation No 44/2001, it should be ascertained whether, before the conclusion of any contract with the consumer, it is apparent from those websites and the trader’s overall activity that the trader was envisaging doing business with consumers domiciled in one or more Member States, including the Member State of that consumer’s domicile, in the sense that it was minded to conclude a contract with them.

In this context, the Court considers what evidence can demonstrate that the trader was envisaging doing business with consumers domiciled in other Member States. Such evidence includes clear expressions of the trader’s intention to solicit the custom of those consumers, for example when it offers its services or its goods in several Member States designated by name or when it pays a search engine operator for an internet referencing service in order to facilitate access to its site by consumers domiciled in those various Member States.

Nevertheless, other less patent items of evidence, possibly in combination with one another, are also capable of demonstrating the existence of an activity “directed to” the Member State of the consumer’s domicile. These include: the international nature of the activity at issue, such as certain tourist activities; mention of telephone numbers with the international code; use of a top-level domain name other than that of the Member State in which the trader is established, for example “.de”, or use of neutral top-level domain names such as “.com” or “.eu”; the description of itineraries from one or more other Member States to the place where the service is provided; and mention of an international clientele composed of customers domiciled in various Member States, in particular by presentation of accounts written by such customers. Likewise, if the website permits consumers to use a language or a currency other than that generally used in the trader’s Member State, this can also constitute evidence demonstrating cross-border activity of the trader.

On the other hand, the mere accessibility of the trader’s website in the Member State in which the consumer is domiciled is insufficient. The same is true of mention of an email address and of other contact details, or of use of a language or a currency which are the language and/or currency generally used in the Member State in which the trader is established.

Incoterms 2010

The Incoterms rules have become an essential part of the daily language of trade. They have been incorporated in contracts for the international sale of goods and provide rules and guidance to importers, exporters, lawyers, transporters, insurers and students of international trade.

The purpose of Incoterms is to provide a set of international rules for the interpretation of the most commonly used trade terms in foreign trade. Thus, the uncertainties of different interpretations of such terms in different countries can be avoided or at least reduced to a considerable degree.

Frequently, parties to a contract are unaware of the different trading practices in their respective countries. This can give rise to misunderstandings, disputes and litigation, with all the waste of time and money that this entails.

In order to remedy these problems, the International Chamber of Commerce first published in 1936 a set of international rules for the interpretation of trade terms, first conceived in 1921.

These rules were known as “Incoterms 1936”. Amendments and additions were later made in 1953, 1967, 1976, 1980, 1990, 2000 and presently in 2010 in order to bring the rules in line with current international trade practices.

As of 1 January 2011 the eighth edition, “Incoterms 2010”, shall have effect. Among other changes therein affected all of the five terms in section D are obsoleted and replaced with the following three: DAT (Delivered at Terminal), DAP (Delivered at Place), and DDP (Delivered Duty Paid). Such new terms apply to all modes of transport.

Rules for any mode or modes of transport:

  • EXW   Ex Works
  • FCA    Free Carrier
  • CPT     Carriage Paid To
  • CIP     Carriage And Insurance Paid To
  • DAT    Delivered At Terminal
  • DAP    Delivered At Place
  • DDP    Delivered Duty Paid

Rules for sea and inland waterway transport:

  • FAS     Free Alongside Ship
  • FOB    Free On Board
  • CFR    Cost And Freight
  • CIF     Cost, Insurance and Freight

It should be stressed that the scope of Incoterms is limited to matters relating to the rights and obligations of the parties to the contract of sale with respect to the delivery of goods sold (in the sense of “tangibles”, not including “intangibles” such as computer software) as they help traders avoid costly misunderstandings by clarifying the tasks, costs and risks involved in the delivery of goods from sellers to buyers.

The current Incoterms 2000 rules are endorsed by UNCITRAL.

UNCITRAL Arbitration Rules 2010

On 25 June 2010, the United Nations Commission on International Trade Law adopted the revised UNCITRAL Arbitration Rules (the “Rules”).

The original UNCITRAL Arbitration Rules were adopted in 1976 and have been used for the settlement of a broad range of disputes, including disputes between private commercial parties where no arbitral institution is involved, investor-State disputes, State-to-State disputes and commercial disputes administered by arbitral institutions.

The revision is aimed at enhancing the efficiency of arbitration under the Rules and does not alter the original structure of the text, its spirit or drafting style.

The Rules, as revised, include more provisions dealing with, among others, multiple parties arbitration and joinder, liability, and a procedure to object to experts appointed by the arbitral tribunal. A number of innovative features contained in the Rules aim to enhance procedural efficiency, including revised procedures for the replacement of an arbitrator, the requirement for reasonableness of costs and a review mechanism regarding the costs of arbitration. The Rules also include more detailed provisions on interim measures.

The Rules will take effect from 15 August 2010 and will be presumed to apply to all arbitration agreements referring to UNCITRAL arbitration concluded after that date, unless the parties have agreed otherwise.


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