Legal Aspects of an E-Commerce Transaction

Transcription

1 Legal Aspects of an E-Commerce Transaction

2

3 Legal Aspects of an E-Commerce Transaction International Conference in The Hague 26 and 27 October 2004 Andrea Schulz (Ed.) Sellier. European Law Publishers

4 Proceedings of an international conference hosted by the Hague Conference on Private International Law, the International Chamber of Commerce and the Ministry of Economic Affairs of the Netherlands. ISBN ISBN Die Deutsche Bibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar by Sellier. European Law Publishers GmbH, München. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist ohne Zustimmung des Verlages unzulässig und strafbar. Das gilt insbesondere für Vervielfältigungen, Übersetzungen, Mikroverfilmungen und die Einspeicherung und Verarbeitung in elektronischen Systemen. Gestaltung: Sandra Sellier, München. Herstellung: Karina Hack, München. Satz: fidus Publikations- Service GmbH, Augsburg. Druck und Bindung: Friedrich Pustet KG, Regensburg. Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany

5 Table of Contents Introduction IX Part I The Pre-Contractual Phase The Legal Aspects of an E-Commerce Transaction: The Pre-Contractual Phase 3 Paul Torremans Online Advertising Standards An Introduction to the Slides 19 Online Advertising Standards (PowerPoint Presentation) 21 Oliver Gray Self-Regulation in Market Research 25 (PowerPoint Presentation) 27 Erich Wiegand WIPO Update Intellectual Property Issues in the Digital Agenda (PowerPoint Presentation) 29 Lucinda Jones Copyright, E-Commerce and Conflicting National Norms: Judicial and Legislative Competence 33 Jane Ginsburg Copyright Infringement on the Internet and Service Provider s Liability A Japanese Approach from a Comparative Perspective 41 Yuko Nishitani Part II The Contractual Phase Negotiation and Conclusion of the Contract: Formal and Substantive Validity, Choice-of-Court and Choice-of-Law Clauses An Introduction 57 Stefan Leible

6 VI Table of Contents Harmonising the Law of International Electronic Contracting: Adjust the Rules but don t Rewrite Them 73 Jose Angelo Estrella Faria Paction the Model International Sale Contract 99 Creating International Sales Contracts Online (PowerPoint Presentation) 103 Åke Nilson The E-Commerce Directive and Private International Law 107 Michael Hellner Party Autonomy and International Online Business-to-Business Contracts in Europe and the United States 123 Simone van der Hof Two Facets of United States Law Applying to E-Commerce Transactions: Jurisdiction over Online Disputes, and the Uniform Computer Information Transactions Act 135 John Rothchild Part III The Performance Phase The Performance Phase 147 Mads Bryde Andersen UNIDROIT Principles and E-Commerce 149 Michael Joachim Bonell Legal Certainty for Electronic Transactions: The Role of the UNCITRAL Model Law on Electronic Commerce (1996) 159 Jose Angelo Estrella Faria Electronic Communication and Incoterms Annex: Electronic Communications under CISG CISG-Advisory Council Opinion No 1, 15 August Jan Ramberg Legal Aspects of Electronic Payments 197 Marc Lacoursière Electronic Invoicing in the Light of European Community Directive 2001/115/EC 211 Anna Nordén

7 Table of Contents VII E-Commerce: Where to go with Taxation? 219 Outline: Tax, E-Commerce & Law (PowerPoint Presentation) 235 William J. Craig Part IV The Post-Contractual Phase and Dispute Resolution E-Commerce: The Post-Contractual Phase 241 Michael Geist Building Trust Online: Work at the OECD 243 Building User Trust Online (PowerPoint Presentation) 245 Sarah Andrews Online Dispute Resolution (ODR): Crossing Technology and Disputes The RisolviOnline Project of the Chamber of Arbitration of Milan 249 Rinaldo Sali Untouchable? A Canadian Perspective on the Anti-Spam Battle 261 Michael Geist Key Characteristics of Modern Russian Regulation in the Field of Electronic Commerce 289 Alexander Matveev The Hague Conference Project for a Global Convention on Jurisdiction, Recognition and Enforcement in Civil and Commercial Matters (the Hague Judgments Project), Electronic Commerce and Intellectual Property 293 Annex: Draft on Exclusive Choice of Court Agreements 309 Andrea Schulz Contributors 325 Index 335 Case Law Cited 359

8

9 Introduction Cyberspace and the Internet have become part of everyday life. Business practices and the law had and still have to find ways to deal with electronic means of communication. And although the Internet is a global medium, many solutions have been developed, just as in the old, paper-based world, on a local, national or regional level rather than on a global level. The consequence is that an international online business transaction will often be subject to a wide range of rules, stemming from various national and international legislative sources, as well as to soft law and diverging business practices. Private international law is pushed to its limits in order to determine the law applicable, and to decide in which State s courts jurisdiction is vested. This is reason enough for taking a step back from detailed analysis and attempting to see the general picture of the legal and practical framework which has developed with regard to online business transactions over the last decade. On 26 and 27 October 2004, the Hague Conference on Private International Law, the International Chamber of Commerce and the Dutch Government therefore co-hosted a conference on the Legal Aspects of an E-Commerce Transaction. In four half-day sessions, the life-cycle of an online business transaction was examined from a legal perspective. Separate sessions were dedicated to the pre-contractual phase, the actual negotiation and conclusion of the contract, its performance and the post-contractual phase. Following an outline of the legal issues raised by e-commerce at that particular stage by a moderator, speakers from international organisations, governments, academia and business presented solutions achieved for some of these problems, and identified remaining difficulties. In this book, this structure has been kept for the presentation of the articles that have resulted from the conference. Due to other commitments, some speakers were unable to provide a full article; in these cases we have decided to include their abstract and/or Power Point Presentations in order to reflect the full range of topics addressed during the conference. The views expressed in the contributions contained in this book are those of the authors, not necessarily those of the organisations represented or of the co-hosts of the conference. In the first part entitled The Pre-Contractual Phase, issues such as advertising, market research, competition, and the infringement of intellectual property rights on the Internet are discussed. The Contractual Phase focuses on the negotiation and conclusion of the contract, its formal and substantive validity, as well as choice-of-court and choice-of-law clauses. The third part on The Performance Phase covers two separate aspects: the delivery of goods or services and online performance on the one hand, and electronic payment and taxes on the other hand. In the fourth part, dedicated to The Post-Contractual Phase and Dispute Resolution, issues such as data protection, confidentiality, spam, and product and service providers liability are examined. In addition, this part contains a case study on online dispute resolution and an article on the preliminary draft Hague Convention on Exclusive Choice of Court Clauses. The regulatory framework discussed covers hard law (international treaties, European Community instruments, national legislation) as well as soft law (model laws,

10 X Introduction recommendations, guidelines elaborated at the national or international governmental level or self-regulatory instruments elaborated by business organisations). The range of instruments addressed includes the European Community s E-Commerce Directive, the United States Digital Millennium Copyright Act, Japanese copyright and private international law, UNCITRAL, UNIDROIT, OECD and WIPO texts, ICC s Incoterms, tax treaties and directives as well as work in progress (e.g., the draft UNCITRAL E-Contracting Convention and the Proposal for a European Community Regulation on the law applicable to non-contractual obligations (Rome II)) and much more all presented and discussed by authors with particular legal and practical expertise on that matter. We are particularly grateful to the Government of the Netherlands for having lent, through its Ministry of Economic Affairs, very generous support to this project that made it possible to hold the conference and publish this book. The Hague, July 2005 Andrea Schulz