Jurisdiction and choice of law rules over electronic consumer contracts: The nexus between the concluded contract and the targeting activity
| DOI | http://doi.org/10.1177/1023263X221090352 |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| Subject Matter | Articles |
Jurisdiction and choice of law
rules over electronic consumer
contracts: The nexus between
the concluded contract and the
targeting activity
Zhen Chen
Abstract
A foreign business is subject to the jurisdiction of a consumer’s domiciled country and the law of
the consumer’s habitual residence, provided that the business has targeted at the consumer’s
home country and the consumer contract falls within the scope of such targeting activities
under Brussels Ibis and Rome I Regulations. However, it is unclear whether the contract must
be concluded from a distance and has a causal link with the targeting activity. The CJEU concludes
that the contract does not have to be concluded at a distance or have a causal connection with the
targeting activity. This is also the case in China in which consumer choice of law rules, while not
requiring a causal link, adopt a lower threshold by examining the dis-targeting test. By contrast,
American jurisdiction rules over consumer contracts adopt a higher threshold, which requires a
casual connection between the consumer’s claim and the business’s contact with the consumer’s
state. Although the EU, USA and China have different private international law rules over con-
sumer contracts, commonalities do exist in certain aspects. Based on a comparative study, this
article argues that the fact that a contract is concluded at a distance or has a nexus with the tar-
geting activity is a relevant factor, among other factors, to determine the targeting test. In this
regard, Brussels Ibis and Rome I need a minor amendment.
Keywords
Brussels Ibis Regulation, Rome I Regulation, jurisdiction grounds, distance contract, fall within the
scope of, causal connection, specific personal jurisdiction, Chinese Conflicts Act, dis-targeting test
Researcher in the Law Faculty, Ulrik Huber Institute for Private International Law, University of Groningen, Groningen, the
Netherlands
Corresponding author:
Zhen Chen, Phd Researcher in the Law Faculty, Ulrik Huber Institute for Private International Law, University of
Groningen, Oude Kijk in’t Jatstraat 5/9, 9712 EA, Groningen,the Netherlands.
Email: zhen.chen@rug.nl
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(3) 328–350
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X221090352
maastrichtjournal.sagepub.com
1. Introduction
Under Articles 17–19 Brussels Ibis Regulation and Article 6 Rome I Regulation, consumers are
granted favorable jurisdiction and choice of law rules in cross-border litigation. The application
of such private international law rules is subject to three conditions.
1
First, one party to the contract
is a consumer who is acting outside his trade or profession. Second, the professional has targeted at,
by pursuing commercial activities in or directing such activities to, the country of the consumer’s
domicile and a contract has actually been concluded.
2
Third, the contract falls with the scope of
targeting activities. If one condition is not fulfilled, consumer jurisdiction rules shall not apply.
By contrast, there is no specific consumer jurisdiction and applicable law rules in the USA.
Consumer contracts are subject to general jurisdiction rules, such as personal jurisdiction rules
and specific jurisdiction rules.
3
China also has no specific jurisdiction rules over consumer con-
tracts, thus foreign-related consumer contracts are subject to general contract jurisdiction rules in
Article 265 of the Chinese Civil Procedure Law. However, a specific consumer conflicts rule is
put in place since 2010. Article 42 of Chinese Conflicts Act expressly states that consumer contracts
are governed by the law of the place of the consumer’s habitual residence. Such favorable rule is
subject to two exceptions. Namely, provided that the consumer chooses to apply the law of the
place of the provision of goods or services, or the business does not engage in relevant commercial
activities in the consumer’s home country, the law of the place of the provision of goods or services
shall apply. Comparing to the targeting test in Article 6 Rome I Regulation which sets a positive
condition by requiring the business conducting a certain activity for the application of consumer
conflict rules (targeting test), Article 42 Chinese Conflicts Act provides a negative condition by
examining the non-engagement of a business in commercial activities for the non-application of
consumer conflict rules (the dis-targeting test). Therefore, the EU has both consumer jurisdiction
and choice of law rules and the USA has neither of them, whilst China only has consumer
choice of law rules.
Although these three legal systems have different approaches towards consumer contracts, their
conflicts of law rules are not totally isolated. Instead, American law influences European law, and
European law influences Chinese law. However, the European law adopted a slightly different
approach from the American law, while having considered the conflicts of law rules in America.
Specifically, the concepts of interactive websites, passive websites and active websites were first
introduced in the USA,
4
which influenced the EU legislation with regard to the targeting test or
directing test provided in the Brussels Ibis and Rome I Regulations.
5
However, the EU legislator
did not use the same concepts of interactive, passive and active websites, but created the targeting
1. Case C-774/19 B.B. v. Personal Exchange International, EU:C:2020:1015, para. 25; Case C-208/18 Jana Petruchová
v. FIBO, EU:C:2019:825, para. 39; citing C-297/14 Hobohm, EU:C:2015:844, para. 24.
2. The criteria of targeting test is discussed in Z. Chen, ‘Internet, Consumer Contracts and Private International Law: What
Constitutes Targeting Activity Test?’,Information and Communications Technology Law (2021), p. 8.
3. International Shoe Co. v. Washington, 326 U.S. 310 (1945); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286
(1980).
4. Bensusan Rest. Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996); Maritz, Inc. v. CyberGold, Inc., 947 F. Supp. 1328
(E.D. Mo.1996); CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996); Zippo Manufacturing Co. v Zippo Dot
Com, Inc., 952 F.Supp.1119(W.D. Pa.1997).
5. The concepts of interactive and passive websites were repeatedly mentioned in the preparatory works of Brussels I
Regulation. J. Øren, ‘International Jurisdiction over Consumer Contracts in e-Europe’,52International and
Comparative Law Quarterly (2003), p. 684.
Chen 329
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