CYIL vol. 14 (2023)

CYIL 14 (2023) COMPARISON OF THE PROROGATION AGREEMENTS UNDER THE HAGUE CONVENTION… on the grounds that the contract itself is invalid. 18 In addition to the explicit requirements of the choice in the Brussels I bis Regulation, the interpretative materia of the case law of the Court of Justice has gradually formulated additional requirements and characteristics. The Court of Justice declared the insufficiency of an oral agreement with confirmation of the order, the prorogation clause of which was part of the general terms and conditions set out on the reverse side and there was no written acceptance or confirmation by the other party. 19 The Court upheld the validity of the choice of jurisdiction clause when incorporated into the general terms and conditions to which the contract expressly referred. 20 It also confirmed the validity of the choice which specifies the courts located in a particular city of one of the Member States as the jurisdiction of choice. 21 The Brussels I bis Regulation does not have a limited scope of application to contractual obligations, which does not exclude the possibility of agreeing on the jurisdiction in the case of any legal relationship, including a delict relationship. As has already been pointed out in this article, the possibility to agree on jurisdiction under the Brussels I bis Regulation is not unlimited. The choice cannot alter the jurisdiction which, in the cases exhaustively set out in Article 24 of the Regulation, falls under the exclusive jurisdiction of certain courts. The choice is also limited to a certain extent for the protection of the weaker party, in order to compensate for the de facto disadvantaged position of the party concerned in the legal relationship. As part of the protection of the weaker party, a choice has additional requirements in consumer, insurance, and individual employment contracts. In the case of the above-mentioned mandatory jurisdictional arrangements, the choice-of-law agreement must either be negotiated after the dispute has arisen or should extend the options of the weaker party when bringing proceedings in the courts of more than one Member State. In addition, for consumer and insurance contracts, this may be the Member State of the same habitual residence of the parties. For insurance contracts, there is an additional extension of options for non-EU resident insurers and for defined risks. 22 In addition to explicit jurisdiction, the Brussels I bis Regulation recognises jurisdiction based on participation in the proceedings. Article 26 Brussels I bis states that jurisdiction is also given to a court of a Member State if the defendant enters an appearance. In the case of a weaker party, the court is obliged to inform that party of the possibility of contesting the lack of jurisdiction of the court seized by the other party. 23 In other proceedings, the court seized does not have that obligation. This method of conferring jurisdiction on a particular court may be regarded as a sui generis choice, since one party is, as it were, agreeing to an offer to establish the jurisdiction of the court seized. The other party does not contest jurisdiction and accepts the proposal, thereby tacitly accepting the other party’s proposal to establish the jurisdiction of the chosen court. If there is participation in the proceedings solely for the purpose of contesting jurisdiction, there will be no acceptance and no subsequent prorogation. It is not impossible that the jurisdiction of certain courts could be established by implied choice, despite the fact that a prorogation clause in favour 18 Art. 25(5) of the Brussels I bis Regulation. 19 Judgment of the Court of 14 December 1976, Segoura p. Bonakdarian , C-25/76, EU:C:1976:178. 20 Judgment of the Court of 20 April 2016, Profit Investment SIM , C-366/13, EU:C:2016:282. 21 Judgment of the Court of 7 July 2016, Hőszig , C-222/15, EU:C:2016:525. 22 Art. 15, 19, and 23 of the Brussels I bis Regulation. 23 Art. 26 Ibid.

427