tegwick
11f2dc3a6d
Executes all remaining shared jurisdictions across both workplans: Germany/EU (deepened contract-law angle), US (deepened), UK (deepened), Argentina, India, China, Africa (South Africa + OHADA), and Asia-Pacific (Singapore, Japan, Australia) - 13 new history/ research artifacts. Highest-priority findings: - Australia's Unfair Contract Terms regime (expanded Nov 2023) covers standard-form contracts with any business under 100 employees/$10M turnover by default - the CUA is exactly such a contract, and most realistic Customers fall within this threshold. Unlike every other jurisdiction's consumer carve-out, this is not an edge case. - China requires a "foreign-related" contract even to select foreign governing law, subject to a vague public-interest override even then - confirms a dedicated China rider is needed for both the License/CUA and the Enforcement Partner Agreement, not a shared global clause. - India flatly prohibits advocate contingency fees (no exception gates, stricter than Germany) while explicitly permitting third-party litigation funding - the cleanest confirmation yet that the Litigation Funder/Local Counsel split-role model is both necessary and legal there. - Japan's Article 12 fee-splitting rule means even the split-role fallback needs jurisdiction-specific structuring - the first case where the workaround itself, not just the original mechanism, has an open compliance question. - Contingency Share ceilings vary widely where available: UK 50% (exact match), South Africa 25%, Argentina 35% (50% only with risk assumption), China 18% down to 6% on a sliding scale that shrinks as claims grow. - Recurring cross-jurisdictional pattern (Germany, EU, US via CCPA, Argentina): B2B governing-law/liability clauses are respected, but an individual/sole-proprietor Customer's consumer-protection status is the operative risk everywhere, not a one-off edge case. Updates specs/EnforcementNetworkConcept.md §8.1 with a full 12-jurisdiction findings table and three cross-cutting conclusions. Updates both V1C1 documents' Appendix A items (governing law, liability cap, data protection) with the most consequential findings. Both workplans now have only their human-gated synthesis tasks (T09-T10 / T10) remaining. Co-Authored-By: Claude Sonnet 5 <noreply@anthropic.com>
46 lines
5.7 KiB
Markdown
46 lines
5.7 KiB
Markdown
# TRSL Jurisdiction Research: Germany and EU-Wide (Deepened)
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**Document status:** Research artifact, Stage 0 (`workplans/TREV-WP-0004-global-jurisdiction-research.md` T01)
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**Not legal advice.** Extends `history/260729-TRSL-Jurisdiction-StandardTerms.md` (WP-0001-T05). Findings drawn from web research (searched 2026-07-29).
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---
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## 1. Rome I Regulation: B2B choice-of-law clauses are generally enforceable
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Regulation 593/2008 ("Rome I") governs which national law applies to contractual obligations across EU member states. Article 3(1) establishes strong party autonomy: "a contract shall be governed by the law chosen by the parties," expressly or by clear inference, and the choice may cover the whole or only part of a contract. For **B2B contracts specifically**, this choice is generally enforceable without the restrictions that apply to consumer contracts.
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The consumer-contract exception is the one that matters here, and it tracks exactly the same B2B/B2C boundary already surfaced in `history/260729-TRSL-Jurisdiction-StandardTerms.md`: a chosen governing law may not deprive a **consumer** of protections that would otherwise apply under the law that would govern absent choice. Since `specs/TargetRevenueCommercialUseAgreement-V1C1.md` is explicitly a *Commercial* Use Agreement, this exception should not usually bite — but the same recurring edge case applies (working default Q2: an individual/sole-proprietor Customer arguably a "consumer" despite the Commercial Use gate).
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**Direct implication:** the License §11.1 / CUA §18 governing-law clause is enforceable under Rome I for genuine B2B relationships without special drafting beyond ordinary clarity. The risk is not Rome I itself, but the same recurring Commercial-Use-vs-consumer boundary question already tracked as an open item.
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## 2. EU Late Payment Directive (2011/7/EU): relevant to CUA §3 payment terms
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Directive 2011/7/EU applies to all B2B (and B2G) commercial transactions across the EU. It gives a creditor three automatic rights on late payment, without needing a reminder: statutory interest, a minimum €40 compensation, and recovery of reasonable collection costs. Default payment terms are 60 days unless the parties expressly agree otherwise and the term is not "grossly unfair" to the creditor.
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**Direct implication:** `specs/TargetRevenueCommercialUseAgreement-V1C1.md` §3.5 currently leaves late-payment interest as an unresolved candidate note ("standard commercial blank"). For any Customer within the EU, this Directive supplies a **default** the Agreement doesn't need to invent from scratch — the Agreement can either adopt the Directive's statutory rate/compensation as its own default, or state its own terms provided they are not "grossly unfair" to the Licensor as creditor. This closes part of CUA Appendix A item 7 for EU Customers specifically (not globally).
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## 3. GDPR/UK GDPR: CUA §11 needs a genuine Data Processing Addendum, and UK/EU are now meaningfully diverging
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Beyond confirming GDPR applies (already noted in the CUA's placeholder §11), this pass found that **UK GDPR and EU GDPR are diverging in practice, not just in name**, following the UK's Data (Use and Access) Act 2025 (DUAA): an expanded "recognised legitimate interests" list with no EU equivalent, reformed ICO governance, relaxed cookie-banner requirements for UK-only sites, and other changes. The EU renewed the UK's adequacy decision in December 2025 (valid to December 2031), but that adequacy status is explicitly contingent on divergence not going far enough to break equivalence.
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**Direct implication:** CUA §11 cannot be drafted as a single "GDPR" clause and treated as covering both the EU and UK — it needs to at least flag that a UK Customer's data-processing terms may need separate handling if UK divergence continues, and that the EU-UK adequacy decision itself is a moving target the Agreement should not assume is permanent. This is a new, more specific finding than the CUA's current placeholder acknowledges.
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## 4. California CCPA/CPRA: the B2B exemption that used to help is gone
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Earlier CCPA drafts exempted B2B personal information exchanges, but that exemption **expired on January 1, 2023** (per AB 1355) and was not renewed — CCPA/CPRA now applies to B2B data relationships on the same basis as consumer ones, subject to the Act's general scope and business-size thresholds.
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**Direct implication:** a US Customer's personnel or contact data processed under the Commercial Use Agreement (e.g., billing contacts, technical contacts) is not automatically shielded from CCPA/CPRA merely because the relationship is B2B — this needs to be factored into CUA §11's eventual Data Processing Addendum for any California-connected Customer, not assumed away by the relationship being commercial.
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## 5. Summary for the WP-0004 feasibility matrix (T10)
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| Question | Germany/EU |
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| B2B choice-of-law enforceable? | Yes, under Rome I Article 3(1), for genuine B2B relationships |
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| Consumer-contract carve-out risk? | Yes — same recurring Commercial-Use-vs-individual edge case as working default Q2 |
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| Late-payment default available? | Yes — Directive 2011/7/EU (60 days, statutory interest, €40 minimum compensation) can fill CUA §3.5's current blank for EU Customers |
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| Data protection regime | EU GDPR and UK GDPR now meaningfully diverging (DUAA 2025); EU-UK adequacy is time-bound and reviewable, not permanent |
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## 6. Open items for T10 synthesis
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- Whether to adopt the EU Late Payment Directive's terms as the CUA's global default, or only as an EU-specific rider — a drafting-scope decision, not yet made.
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- Whether the CUA needs two data-processing riders (EU GDPR-based and UK-GDPR-based) rather than one shared clause, given confirmed divergence.
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