Short answer
Generally yes, where the business customer genuinely assented to terms that were made available before contracting.
Rome I imposes no form requirement on a choice of law. Article 3(1) requires only that the choice be "made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case". A governing-law clause in accepted online terms is an express choice.
What is contested in practice is not the form of the clause but whether the customer agreed to the terms at all. Rome I routes that question through Article 3(5):
"The existence and validity of the consent of the parties as to the choice of the applicable law shall be determined in accordance with the provisions of Articles 10, 11 and 13." —
So the question is incorporation and consent, decided principally under the putative law, with a narrow escape for a party who can show it would be unreasonable to judge its conduct by that law.
Keep the choice of court separate. Jurisdiction agreements are excluded from Rome I by Article 1(2)(e) and are governed by Brussels Ia, which does impose a form requirement — and that is where the click-wrapping case law actually sits.
Consent under Article 10
Article 10 resolves the circularity of testing a clause by the law the clause selects:
"1. The existence and validity of a contract, or of any term of a contract, shall be determined by the law which would govern it under this Regulation if the contract or term were valid. 2. Nevertheless, a party, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1." —
Paragraph 1 is the rule: apply the putative law — the law that would govern if the clause were valid — to questions of offer, acceptance, incorporation of standard terms and battle of the forms.
Paragraph 2 is a narrow safety valve, not a general escape. It allows a party to rely on the law of its habitual residence to establish that it did not consent, and only where judging its conduct by the putative law would be unreasonable in the circumstances. It is aimed at silence-as-acceptance and similar cases where a legal system attaches consent to conduct that would be neutral elsewhere. It is not available simply because the putative law is unfamiliar or inconvenient.
Note that Article 10 operates in one direction: it helps a party deny consent, not assert it.
What makes online terms stick
Because incorporation is decided by the putative law, national approaches differ in detail. The factors that recur across systems are consistent enough to plan around.
Presentation before contracting. Terms must be available before the contract is concluded, not afterwards. A link in an order-confirmation email is weak; terms displayed at the point of order are strong.
An affirmative act. A ticked box or a clearly labelled button ("I agree to the Terms") is materially better than a browsewrap notice at the foot of a page. The distinction between clickwrap and browsewrap is doing most of the work here.
Accessibility. Terms that can be read, downloaded and printed before acceptance are far more defensible than terms behind a login or presented in an unusable format.
A retained record. The supplier should be able to show which version of the terms was accepted, by whom, and when. Version control is the practical weak point: businesses frequently cannot evidence the terms in force on the date of a particular order.
Unusual or onerous terms. Several systems require particular prominence for surprising clauses. A governing-law clause selecting a remote jurisdiction, combined with wide exclusions, may attract that scrutiny.
Battle of the forms. Where a business customer responds with its own purchase-order terms containing a different governing-law clause, the putative law determines which prevails — and the systems differ sharply between "last shot" and "knock-out" approaches.
Article 11 then addresses formal validity, with alternative reference rules that are generous. A choice of law is unlikely to fail for want of form.
The jurisdiction clause is a different test
This is where practitioners most often conflate two questions, and where the well-known authority sits.
Brussels Ia Article 25 requires a jurisdiction agreement to be in writing or evidenced in writing, or in a form according with practices between the parties or with international trade usage. It then provides that any communication by electronic means which provides a durable record of the agreement is equivalent to writing.
In El Majdoub (C-322/14) the Court of Justice addressed exactly the click-wrapping scenario: general terms of sale which could be consulted and printed via a link opening in a new window, accepted by ticking a box. The Court considered whether that satisfied the durable-record requirement of the equivalent provision in the predecessor Regulation. The Court returned to Article 25 and the durable-record provision in Tilman (C-358/21), in the context of terms accessible via a hyperlink in a B2B relationship.
Two practical points follow. First, the jurisdiction clause has a form requirement that the governing-law clause does not, so it is the harder clause to get right online. Second, satisfying Brussels Ia does not by itself prove consent for Rome I purposes, and vice versa — they are separate enquiries that happen to be satisfied by similar design choices.
Protective regimes still override
Everything above assumes a genuine B2B contract.
Consumers. Article 6 applies where the trader pursues or directs activities to the consumer's country. The choice of law cannot deprive the consumer of the protection of the non-derogable rules of their habitual residence, and Brussels Ia contains parallel jurisdictional protections.
Employees. Article 8 applies the same structure to individual employment contracts.
Misclassification is a real risk. A sole trader, a small partnership or an individual buying in a mixed capacity may not be a "business customer" for these purposes. Self-declaration at checkout is evidence, not a conclusion.
Article 3(3) and 3(4) continue to apply. Where all other relevant elements are in one country, or wholly within the EU, the choice cannot displace that country's or the Union's non-derogable rules.
Unfair terms. Even in B2B, several Member States apply standard-terms control to contracts between businesses, and the governing law cannot be used to escape overriding mandatory provisions under Article 9.
Design recommendations
- Present terms before the point of order, with an affirmative acceptance step.
- Use a labelled checkbox or button rather than a passive footer link.
- Make terms readable, downloadable and printable without creating an account.
- Log the accepting user, the timestamp, and a hash or copy of the exact version accepted.
- Retain superseded versions and be able to produce the version in force on any past date.
- Give the governing-law and jurisdiction clauses reasonable prominence.
- Draft the jurisdiction clause to satisfy Brussels Ia Article 25's durable-record requirement.
- Treat the choice of law and the choice of court as separate clauses with separate tests.
- Segment genuine consumer flows from business flows, and do not rely on a self-declaration tickbox alone.
- Re-acceptance on material change is safer than a unilateral right to amend.
Conclusion
A clickwrap governing-law clause can bind a business customer in the EU. Rome I imposes no form requirement, and the clause will normally be effective where the terms were genuinely presented and accepted.
The real risk is evidential rather than doctrinal. Consent is tested under the putative law, and a supplier who cannot show which version of the terms was accepted, by whom and when, will struggle whichever law applies. The jurisdiction clause sitting beside it is the harder one, because Brussels Ia requires a durable record — which is why the leading online-terms case law is about jurisdiction, not governing law.
Design the acceptance flow once, properly, and both clauses become defensible.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.