In the dispute between AstraZeneca and European Commission, the Belgian Court does not mention (in point IV. A. of the Decision) art. 25 of Regulation (EU) 1215/2012 Of the European Parliament and of the Council. This article states that “[i]f the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State.”
On the other hand, point IV.B.29 of the Decision states that “Les conventions doivent être interpretées au regard d l’intention commune des parties, conformément à l’article 1156 de l’ancien Code Civil”. But article 3 (1) of Rome I Regulation states that “[a] contract shall be governed by the law chosen by the parties.”
Has the court held that Article 3(1) of Rome I Regulation excludes the application of the CISG?
Did the Court apply its domestic conflict rules?
Does the choice of Belgian law by the parties preclude the application of the CISG?
We do not know for sure because the Court does not expressly address this issue. Unfortunately, there is still a long way to go before national courts apply, first of all, the principle of the primacy of European law and the CISG.
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