J.W. Rutgers

Choice of Law in b2b Contracts: the Law of the Jungle

Abstract Is the law of the jungle the guiding principle with respect to choice of law clauses in international contracts between businesses (b2b contract)? Does a choice of law imply the rule of the strongest party? These and other questions are discussed in the light of 18 exploratory qualitative interviews with Dutch senior practising lawyers (advocaten). Lawyers were interviewed, since it is often presumed that they play an important role with respect to a choice of law in the pre-contractual phase. However, the perception of lawyers with respect to a choice of law is underresearched. The interview findings are discussed and compared to the data concerning a choice of law in the context of the debates about a common European contract law, regulatory competition, self-enforcing contracts and the legal origin theory. Finally, questions for future research are formulated. For instance, in the empirical research conducted sofar, no specific attention has been paid to small and medium sized businesses. Had they been considered, the outcome could have been different. The same may be said with respect to the different business sectors and the countries where the companies are established.

2010, , (Case C-518/06 European Commission v Italy, ECJ 28 April 2009)

Road accidents are the main cause of mortal fatality in the European Union rather than any specific disease1. In the European Union, 39 000 European citizens died in road accidents in 20082. In addition, in the Netherlands for example, approximately, 290.000 persons incurred medically treated damage, which involved an annually average sum of 330 million Euros for the years 2003–20073. In other words, road accidents are a reason for concern in many respects.

Cases and Case Notes

2. The national court is obliged, when it applies national law provisions predating or postdating the said Directive, to interpret those provisions, so far as possible, in the light of the wording and purpose of the Directive. The requirement for an interpretation in conformity with the Directive requires the national court, in particular, to favour the interpretation that would allow it to decline of its own motion the jurisdiction conferred on it by virtue of an unfair term.