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Edited By: Danny Busch, Matthias Lehmann
From: Unfair Terms in Banking and Financial Contracts
Edited By: Danny Busch, Matthias Lehmann

8 Exclusive Jurisdiction »

Matthias Lehmann
From: The Brussels I Regulation Recast
Edited By: Andrew Dickinson, Eva Lein, Andrew James (Assistant Editor)
This chapter discusses Art 24 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council on Jurisdiction and the Recognition and Enforcement of Judgments (Recast) on the exclusive jurisdiction of courts of a Member State. It covers exclusive jurisdiction relating to immovable property, companies, entries in public registers, intellectual property rights, and enforcement of judgments.

Part II EU Jurisdictions, 3 Germany »

Matthias Lehmann
From: Unfair Terms in Banking and Financial Contracts
Edited By: Danny Busch, Matthias Lehmann
This chapter looks into the legal basis of unfair terms control in Germany. It highlights the country’s long-lasting legacy of controlling unfair terms, starting with the General Terms Act of 1976. Today, the rules on unfair terms are to be found in the Civil Code. They apply not only to business-to-consumer, but to a large extent also cover business-to-business contracts. The chapter shows how German courts have rigidly applied this legal framework to banking and financial contracts, outlawing many standard terms, such as fee clauses. The deterrence has been so strong that market participants may be tempted to escape German law altogether by choosing a different legal system.

Index »

Edited By: Danny Busch, Matthias Lehmann
From: Unfair Terms in Banking and Financial Contracts
Edited By: Danny Busch, Matthias Lehmann

Part I General Part, 1 Introduction »

Danny Busch, Matthias Lehmann
From: Unfair Terms in Banking and Financial Contracts
Edited By: Danny Busch, Matthias Lehmann
This introductory chapter sets the scene by discussing the special need for unfair terms control in banking and finance. This chapter points in particular to the strong imbalance of knowledge and negotiating power in this sector. It sheds light on the purpose of this book, which is essentially a stocktaking of the influence of the Unfair Terms Directive (UTD) in the European Union, the European Economic Area (EEA), and Europe as a whole. The chapter sets out our understanding of the notion ‘banking and financial contracts’, and explains our selection of covered jurisdictions. Finally, the structure of the book is presented.

11 Lis Pendens and Related Actions »

Pippa Rogerson, Matthias Lehmann, Francisco Garcimartin
From: The Brussels I Regulation Recast
Edited By: Andrew Dickinson, Eva Lein, Andrew James (Assistant Editor)
This chapter discusses the new Arts 29-34 (Section 9 of Chapter II) of the Recast Regulation, which are centrally important to the operation of the Regulation. It covers provisions on lis pendens and related actions in another Member State, lis pendens and exclusive jurisdiction, autonomous determination of the time at which the court was seized, and lis pendens and related actions in non-Member States.

List of Abbreviations »

Edited By: Danny Busch, Matthias Lehmann
From: Unfair Terms in Banking and Financial Contracts
Edited By: Danny Busch, Matthias Lehmann

List of Contributors »

Edited By: Danny Busch, Matthias Lehmann
From: Unfair Terms in Banking and Financial Contracts
Edited By: Danny Busch, Matthias Lehmann

4 Special Jurisdiction »

Matthias Lehmann, Eva Lein, Pippa Rogerson, Marie-Elodie Ancel
From: The Brussels I Regulation Recast
Edited By: Andrew Dickinson, Eva Lein, Andrew James (Assistant Editor)
This chapter discusses Art 7 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council on Jurisdiction and the Recognition and Enforcement of Judgments (Recast), which contains seven grounds of special jurisdiction. These grounds are ‘special’ in so far as they are exceptions to the principle of sequitur forum rei established by Art 4 as the general principle of the Regulation in allowing claims to be brought in a forum different from the domicile of the defendant. The chapter covers provisions on jurisdiction for contractual matters; jurisdiction in matters relating to tort, delict, or quasi-delict; jurisdiction linked to criminal proceedings; jurisdiction for the retrieval of cultural objects; jurisdiction over establishments; and jurisdiction relating to trusts.

Table of Cases »

Edited By: Danny Busch, Matthias Lehmann
From: Unfair Terms in Banking and Financial Contracts
Edited By: Danny Busch, Matthias Lehmann

Table of Legislation »

Edited By: Danny Busch, Matthias Lehmann
From: Unfair Terms in Banking and Financial Contracts
Edited By: Danny Busch, Matthias Lehmann

Part III Conclusions, 21 Towards an Unfair Terms Regulation »

Danny Busch, Matthias Lehmann
From: Unfair Terms in Banking and Financial Contracts
Edited By: Danny Busch, Matthias Lehmann
This chapter draws conclusions from the preceding analysis. In light of the significant divergences between national legal system in the administration of unfair terms control, this chapter suggests to replace the Unfair Terms Directive (UTD) with a Uniform Terms Regulation (UTR). All of the Regulation’s rules shall be directly applicable in the EU, thus avoiding any need for implementation by the Member States. In view of the chapter, such an instrument should cover not only consumer contracts, but also between business-to-business (B2B) contracts, at least when small and medium-sized enterprises (SMEs) are involved. The chapter opines that the UTR should provide clear definitions of key terms, such as ‘unfair’, ‘main performance’, or ‘price and remuneration’. It should include a binding Annex with a list of terms deemed to be unfair. The UTR should also set out the transparency test, clarifying its relation to the contra proferentem rule and the consequences of a lack of transparency. Furthermore, the UTR should include rules on the consequences of invalid terms, on limitation periods, and on procedural remedies. This chapter believes that the UTR will be instrumental for achieving the triple goals of consumer protection, the establishment of the Internal Market, and a competitive level playing field in the Union.

Part I General Part, 2 The Unfair Terms Directive and Its Application to Banking and Financial Contracts »

Danny Busch, Matthias Lehmann
From: Unfair Terms in Banking and Financial Contracts
Edited By: Danny Busch, Matthias Lehmann
This chapter presents the Unfair Terms Directive (UTD), which is the key text of the European Union (EU)’s unfair terms control. The chapter discusses all provisions of the UTD relevant to banking and financial context, article by article. It also provides an overview over the extensive and complex case law of the Court of Justice of the EU (CJEU) in the area. The chapter starts by analysing the purpose and scope of the Directive as well as its relation to the national laws of the Member States. It goes on to discuss the exclusion of core terms from unfair terms control, the transparency requirement, and the unfairness test. It also addresses the legal consequences of unfair terms and procedural remedies, which result from a complex interplay between EU and national law.

Unfair Terms in Banking and Financial Contracts »

Edited By: Danny Busch, Matthias Lehmann