- Bucharest Court of Appeal
SALES CONTRACT - BETWEEN AN ENGLISH SELLER AND A ROMANIAN BUYER – SELLLER’S STANDARD TERMS CONTAINING AN ARBITRATION CLAUSE IN FAVOR OF AN ARBITRATION SEATED IN ENGLAND – REFERENCE TO UNIDROIT PRINCIPLES TO INTERPRET ART. 23 OF EUROPEAN COUNCIL REGULATION NO. 44/2001 ON JURISDICTION AND RECOGNITION AND ENFORCEMENT OF JUDGEMENTS IN CIVIL AND COMMERCIAL MATTERS
EFFECTIVENESS OF ARBITRATION CLAUSE CONTAINED IN STANDARD TERMS UNILATERALLY PREPARED BY SELLER AND SENT TO BUYER BY E-MAIL – RECEIPT PRINCIPLE – REFERENCE TO ART. 1.10 OF UNIDROIT PRINCIPLES
EFFECTIVENESS OF ARBITRATION CLAUSE CONTAINED IN STANDARD TERMS UNILATERALLY PREPARED BY SELLER AND SENT TO BUYER BY E-MAIL – REFERENCE TO ARTS. 2.1.19 AND 2.1.20 OF UNIDROIT PRINCIPLES IN ORDER TO AFFIRM THE VALIDITY AND WIDE DIFFUSION IN INTERNATIONAL COMMERCIAL PRACTICE OF THIS FORM OF CONTRACT CONCLUSION - BURDEN OF PROOF ON THE PARTY WHO PROPOSES AN INTERPRETATION DIFFERENT FROM THAT PROVIDED BY THE UNIDROIT PRINCIPLES
An English Seller and a Romanian Buyer concluded a contract for the sale of a particular type of merchandise by electronic means of communication. The Buyer invited by e-mail the Seller to submit an offer for the sale of that particular merchandise. The Seller replied by e-mail providing information on the sale price and attaching its standard terms and conditions, which contained an arbitration clause in favor of an arbitration seated in England and a choice of law clause in favor of English law. The Buyer paid the price without objecting to the content of Seller’s standard terms.
After the delivery of the goods, Buyer brought an action against Seller, requesting compensation for damages due to defective performance of the latter. By invoking the arbitration clause, the Seller contested the Romanian courts’ jurisdiction. In its turn, Buyer argued that its ‘silence’ did not in itself amount to acceptance of the choice of English arbitration forum, unless the Seller demonstrated the establishment of a practice between the parties (e.g. by its conduct), which however was not present for the clause at stake.
The Court upheld the Seller’s plea, holding that Romanian courts lacked jurisdiction over the dispute. According to the Court, the prorogation of jurisdiction could be considered valid on the basis of Article 23(1) lett. b and c of EC Council Regulation no. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, according to which an agreement conferring jurisdiction may be concluded not only in writing or orally with written confirmation, but also “in a form which accords with practices which the parties have established between themselves” or, in international trade or 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”. In the case at hand, since the parties had concluded other contracts by electronic means of communication in previous years and the Buyer had never objected to the arbitration clause contained in the Seller’s standard terms, the Court concluded that the latter were binding on both parties, including the arbitration clause. In affirming so, the Court referred also to Arts. 1.10, 2.1.19 and 2.1.20 of UNIDROIT Principles (1994), as revised in 2004 and 2010, which, in the opinion of the Court, represent an internationally accepted standard of contract interpretation, also with regard to the formation phase and the use of standard terms, so that the party proposing a different interpretation must provide evidence that this different interpretation has been agreed between the parties.
Original full text in Romanian available at www.rolii.ro}}