EUPillar OLG Hamburg, 19.12.2012

Summary

The parties argued on the question whether two clauses in general terms and conditions, one ruling an arbitration agreement and another ruling the applicable law, have been included into the contract correctly. The clauses were used by one of the parties in her offer confirmations within a regular business relation. The court held that the clauses had been included into the contract correctly. The inclusion of general terms and conditions had to be considered under Art. 10 (1) Rome I even though there has been made a choice of law. Therefore, the law applicable to the main contract was decisive for the inclusion of general terms and conditions. In German literature it is an arguable issue according to which rules general terms and conditions are being included into a contract given the fact that between the parties the CISG is applicable. One opinion applies – just like the court in this decision – the Private International Law and therefore comes to the application of the law that governs the main contract. The other opinion states that the inclusion of general terms and conditions in case of an existing common substantive law such as the CISG has to be valid pursuant to these substantive rules. The inclusion of general terms and conditions in case of existing common substantive law (CISG) isn’t assessed uniformly. The court didn’t mention the possibility of considering the application of Art. 8, 14 and following CISG. A preliminary request would have been useful because the issue also concerns the scope of application of Art. 1 (2) e Rome I Regulation which excludes agreements on arbitrations.