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References
In 1992, when the Hague Judgments Convention was first proposed, the number of computers hooked up to the Internet only reached 1.3 million. See Towards Digital eQuality, U.S. Government Working Group on Electronic Commerce, 2nd Annual Report (1999) (citing Internet Software Consortium-Domain Survey available at <http://www.isc.org>). Today there are approximately 625 Million computers with access to the Internet. See Computer Industry Almanac, Press Release: There will be 625 Million Computers-in-Use Year End 2001-July 2001 at <http://www.c-i-a.com/200107cu.htm> (last visited on 7 February 2002). Different surveys quote different numbers, but the trend is clear. For example, NUA Internet Surveys reports over 500 million users world-wide as of August 2001: NUA Internet Surveys, available at <http://www.nua.ie/surveys/how_many_online/>.
Jovi Tanada Yam, L@wyer.com; “Global Treaty Tames the Web”, Business World (16 August 2001).
Carl S. Kaplan, “Divining the Future of Law and Technology”, N. Y. Times, 11 January 2002 (quoting Dan L. Burk, Professor at the University of Minnesota Law School).
Here, and throughout this article the term “private international law rules”, is meant to describe international rules dealing with choice of law, jurisdiction and the recognition and enforcement of foreign judgments.
Note, in fact, that the infrastructure for e-commerce continues to grow despite the recent “dot com demise”, See OECD, Business to Consumer Electronic Commerce: An update on the Statistics, available at <http://www.oecd.org/pdf/M00018000/M00018264.pdf>. And notwithstanding the downturn in the United States economy. See Paul Krill, “E-Commerce Grows, Despite Slumping Economy”, PCWorld.com, 25 September 2001 [hereinafter Krill, E-Commerce Grows] at <http://www.pcworld.com/resource/printable/article/0,aid,63206,00.asp>. Nevertheless, the growth is varied and not altogether smooth. For example, it was reported in January 2002 that almost half of all Europeans have gone online, that online retail sales in the United States amounted to 47.6 billion dollars, up from 42.4 billion in 2000, and that while Dutch e-commerce spending was on the rise, German online shopping was down slightly in December 2001 as compared to December 2000.
For example, the European Parliament and the European Council have repeatedly stated their commitment towards the development of e-commerce which is reflected in the Directive 2000/31/EC of the European Parliament and of the Council on certain aspects of information society services, in particular electronic commerce, in the Internal Market [hereinafter E-commerce Directive] of 8 June 2000 (OJ [2000] L 178/1), stating that “[t]he development of electronic commerce within the information society offers significant employment opportunities in the Community, particularly in small and medium-sized enterprises, and will stimulate economic growth and investment in innovation by European companies, and can also enhance the competitiveness of European industry, provided that everyone has access to the Internet”, In April 2001 the U.S. Secretary of Commerce noted in a speech confirming his commitment to supporting e-commerce growth, that “President Bush recognises, as do I, that e-commerce will continue to be one of the driving forces of economic growth in the 21st century”,: Donald L. Evans, Address before the Latin American/Caribbean E-Commerce Summit (4 April 2001). Australia and Japan also made a joint statement on e-commerce: “The Government of Australia and the Government of Japan accept that the growth of the information economy is a significant development in global economic relations and benefits both countries, especially in the conduct of international business. Electronic commerce, in particular, allows access to new markets, improves the quality of services, encourages innovation, and fosters more efficient supply and distribution”, The Ministry of Foreign Affairs of Japan, Australia-Japan Joint Statement on Electronic Commerce (6 July 1999) at <http://www.mofa.go.jp/policy/economy/e_commerce/statemt9907.html>.
For example, the World Trade Organization (WTO) recently stated in a Ministerial Déclaration that “electronic commerce creates new challenges and opportunities for trade for members at all stages of development, and we recognize the importance of creating and maintaining an environment which is favourable to the future development of electronic commerce”, Ministerial Declaration from WTO Ministerial meeting, Doha, November 2001, WT/MIN (01)/DEC/1, 14 November 2001, at <http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm#electronic>. The OECD states on its website that “[electronic commerce is a central element in the OECD’s vision of the potential that our networked world holds for sustainable economic growth, more and better jobs, expanding world trade, and improved social conditions”, At <http://www.oecd.org/oecd/pages/home/displaygeneral/0,3380,EN-home-29-nodirectorate-no-no-29,FF.html>.
See OECD, The OECD Forum on Electronic Commerce: Report on the Forum, at 20, SG/EC(99)12 (Nov. 1999) available at <http://wwwl.oecd.org/dsti/sti/it/ec/act/paris_ec/pdf/forum_report.pdf>.
Much has been written on this subject. See generally Peter Cukor & Lee McKnight, “Knowledge Networks, The Internet, and Development”, 25 Fletcher F. World Affairs (Winter 2001) 43 (describing the implications of e-commerce technology in the developing nations of Africa, Asia, Eastern Europe, and Latin America.); Robert Kossick, “The Internet in Latin America: New Opportunities, Developments, and Challenges”, 13 Fla. J. Int’l L. (2001) 263, 275 (noting that “[t]he internet presents one of Latin America’s most important developmental opportunities”,); Onelia Collazo, “E-tailing”, LatinFinance (June 1999) 48 (describing the Internet’s impact on international commerce as having levelled the playing field between large and small firms). See also Electronic Commerce within the framework of the WTO: Implications for the less developed countries. Agency for International Trade Information and Co-operation <http://www.acici.Org/aitic/documents/Notes/note5ang.html#3>.
The cross-border implications of e-commerce are considerable. Forrester Research predicts that in 2004 close to 18% of global exports will be undertaken online. Matthew Sanders, The Forrester Report: Sizing Global Online Exports (Forrester Research, Inc., November 2000) p. 7, available at <http://www.itechnopreneur.com/attachments/Sizing_global_online_exports.pdf>.
For example, the Agency for International Trade Information and Cooperation (AITIC) reported that “[o]n the occasion of their summit in Washington, DC, on 5 December 1997, the United States and the European Union issued a joint statement on electronic commerce recognising the following: — that a coherent, coordinated approach to it internationally was required and committed themselves to work out solutions within multilateral institutions at a global level and recognised the importance of involving all countries, including developing ones; — that governments should provide a clear, consistent and predictable legal framework, and promote a pro-competitive environment for the development of electronic commerce AITIC, Electronic Commerce and Issues of Interest to for Less-Advantaged Countries (May 1998), available at <http://www.acici.org/aitic/documents/notes/notel 5_eng.html#4/aitic/documents/notes/notel 5_eng.html#4>. See also The E-Commerce Directive, which states in the preamble that “Cooperation with third countries should be strengthened in the area of electronic commerce, in particular with applicant countries, the developing countries and the European Union’s other trading partners”, supra n. 6, at Recital 62.
For example, the World Trade Organization (WTO) stated in a ministerial declaration in 1998 that the “Ministers, [r]ecognizing that global electronic commerce is growing and creating new opportunities for trade, declare that: The General Council shall, by its next meeting in special session, establish a comprehensive work programme to examine all trade-related issues relating to global electronic commerce …”, Ministerial Declaration from WTO Ministerial meeting, Geneva, May 1998 on Electronic Commerce, WT/MIN (98)/DEC/2, May 25, 1998 at http://www.wto.org/english/tratop_e/ecom_e/mindecl_e.htm. The OECD states in its report About Electronic Commerce that e-commerce “is inherently transborder, and its successful development depends to a large extent on transborder solutions based on policy co-ordination between countries and between stakeholder constituencies”, at <http://www.oecd.org/oecd/pages/home/displaygeneral/0,3380,EN-about-29-nodirectorate-no-no-no-29,FF.html>. WIPO, having noted the significant impact that electronic commerce has on intellectual property matters, has produced a Digital Agenda and a primer on Electronic Commerce and Intellectual Property Issues designed to address “WIPO’s ongoing mandate to examine the evolving relationship between electronic commerce and intellectual property”, Primer on Electronic Commerce and Intellectual Property Issues at <http://ecommerce.wipo.int/primer/section1.html>.
For example the Software Information Industry Association (SUA) has stressed the importance of developing a “predictable, minimalist environment in which e-commerce can flourish”, Noting in particular the difficulties faced by e-businesses with regard to the management of risk and the costs associated with litigating in foreign courts. See Government Affairs: 2001 Key Issues Promoting E-Commerce (January 2001) at <http://www.siia.net/sharedcontent/govt/ecom.pdf>. The SIIA is a trade association of the software and information industry and represents more than 1,000 high-tech companies in over 33 countries.
Such concerns by consumers are not unreasonable. For example, it was recently reported that “up to one in 10 online transactions in the Asia-Pacific Region involve fraud of some sort”, See “Online Fraud Rampant in Asia Pacific”, South China Morning Post, 23 January 2002 available at <http://www.nua.ie/surveys/index.cgi?f+VS&art_id=905357585&rel=true>. Visa International is reported to place online credit card fraud rates at “between 25 cents to 28 cents per every $100 charged, significantly higher than the 7 cents for all transactions”, See Krill, supra n. 5. With reports such as these, the importance of creating a legal framework for e-commerce transactions is increased.
Juliana Gruenwald, “Intellectual Property Organization Stumped”, ZD News (1 February 2001), at <http://www.zdnet.com/zdnn/stories/news/0,4586,2681274,00.html>.
See WIPO, Background Paper, Doc. WIPO/PIL/01/9 ¶ 6 (29 January 2001) at <http://www.wipo.int/pil-forum/en/>.
Doc. A/36/8, Preamble (18 June 2001) available at <http://www.wipo.int/eng/document/govbody/wo_gb_ab/doc/a36_8.doc>.
See ibid.
WTO, paragraph 9 of Document IP/C/20 (4 December 2000).
See Heinz Häuser & Sacha Wunsch-Vincent, “A Call for a WTO E-Commerce Initiative”, 6 International Journal of Commercial Law & Policy (2000/2001) 13, available at <http://www.ijclp.org> (describing the difficulties the WTO has had reaching agreement on concrete proposals for international co-operation with regard to the Internet).
See Sorieul, Clift & Estrella-Faria, “Establishing a legal framework for electronic commerce: the work of the United Nations Commission on International Trade Law (UNCITRAL)”, 35 International Law (2001) 107.
It is interesting to note that UNCITRAL’s work in this area began with the drafting of the UNCITRAL Legal Guide on Electronic Funds Transfers, which was intended to address the emerging use of electronic fund transfers. See U.N. Doc. A/CN.9/SER.B/1, Sales No. E.87.V9 (1987). Work was started because it was unclear as to whether the rules governing paper-based funds transfers should or would be applied to electronic fund transfers. As early as 1986, UNCITRAL began its work on a model law in this same field, with the intention of influencing “the development of national practices and laws governing the newly developing means of making funds transfers”, The project was completed in 1992. “The Model Law on International Credit Transfers”, 23 UNCITRAL Yearbook (1992), Annex II reprinted in 32 I.L.M. (International Legal Materials) (1993) 587.
At its thirty-eighth session, in 2001, UNCITRAL’s working group on electronic commerce recommended “to the Commission that work towards the preparation of an international instrument dealing with certain issues in electronic contracting be begun on a priority basis”, UNCITRAL Secretariat, “Legal Aspects of Electronic Commerce”, U.N. Doc. A/CN.9/WG.IV/WP.95, at ¶7 (20 September 2001). Interestingly, it was decided to consider whether the instrument to be worked on might not be in the form of a convention, as opposed to model law. Ibid, at ¶8. In conformance with the working group’s directions, the UNCITRAL Secretariat drafted the proposed work in the form of a draft convention. Ibid., at Annex I. Nevertheless, the question of form is still undecided, and was only briefly discussed at the most recent negotiations in March 2002.
UNCITRAL, G.A. Res. 162, U.N. GAOR, 51st Sess., Annex, Agenda Item 148, U.N. Doc. A/RES/51/162, U.N. GAOR, 51st Sess., Annex, Agenda Item 148, U.N. Doc. A/RES/51/162 (1997), reprinted in 36 I.L.M. (1997) 197.
See Report on the Working Group on Electronic Commerce on its thirty-eighth session, UNCITRAL, U.N. Doc. A/CN.9/484 at ¶¶ 1–7, (24 April 2001).
For a thorough report on the first of the two expert meetings, see The Summary of Discussions on Electronic Commerce and International Jurisdiction prepared by Catherine Kessedjian with the co-operation of the private international law team of the Ministry of Justice of Canada, Preliminary Document No. 12 of August 2000, for the attention of the Nineteenth Session [hereinafter Ottawa Report].
It should be understood that this Article is not suggesting that the problems raised by the Internet are the only difficulties encountered in the course of negotiating the Judgments Project. In addition to the Internet, there have been struggles over activity-based jurisdiction, intellectual property issues, consumer contracts, employment contracts, and many other important concerns, including the impact of the European Commission’s competence in matters of private international law on the face of the negotiations. Nevertheless, many of these issues have been exacerbated by the questions raised with regard to the Internet. This Article, however, focuses on the questions that will be problematic in any negotiation over a private international law instrument that will deal with the Internet.
Many formal statements have been made by organisations representing private sector interests suggesting that the Judgments Project could, as it stands, inhibit e-commerce growth rather than encourage the industry. See, e.g., the statement issued by the Internet Law and Policy Forum, Working Group Document No. 15, for the Nineteenth Session, stating that “subjecting on-line merchants to global jurisdiction will have a chilling effect on the growth of e-commerce. We must take care not to adopt a jurisdictional framework which will be extremely difficult to amend before we understand all its ramifications on this new medium”, See also The International Chamber of Commerce Comments on the draft Hague Convention on Jurisdiction and the Enforcement of Foreign Judgements in Civil and Commercial Matters, 7 December 2001 (stating that “the jurisdictional rules relating to the Internet and electronic commerce within many of the negotiating states are evolving. Our members believe that it would be unwise, in many circumstances, to disregard the evolution of legal principles currently underway within many negotiating states, and prematurely set rules that may not work, via an international convention.”,); Comments of the SIIA submitted to the U.S. Patent and Trademark Office with regard to the October 1999 draft on January 12, 2001 stating that “the proposed draft would be a significant step backwards from existing predictable legal regimes and would in all likelihood, complicate, rather than facilitate, global electronic commerce”, In addition there have been a number of articles written on the subject. See, e.g., Paul Hofheinz, “EU Notebook — Cross-Border E-Commerce Continues to Raise Concerns”, Wall St. J., 16 August 2001; Jovi Tanada Yam, “Global Treaty tames the Web”, Business World, 16 August 2001.
On 5 May 1992, the Legal Advisor of the United States Department of State sent a letter to the Hague Conference, proposing that work be done in this area. See The Report on International Jurisdiction and Foreign Judgments in Civil and Commercial Matters prepared by Catherine Kessedjian, Preliminary Document No. 7 of April 1997, for the attention of the Special Commission of June 1997 on the question of jurisdiction, recognition and enforcement of foreign judgments in civil and commercial matters at ¶ 17 [hereinafter Prel. Doc. No. 7]. It is worth noting that the United States’ request was motivated by an interest in gaining greater recognition and enforcement of US judgments in other countries. While the courts in the United States generally recognise and enforce money judgments from other countries, US judgments do not necessarily receive the same treatment abroad. Conversely, it is largely the jurisdictional provisions that attracted European and Asian countries to this project. The Convention could theoretically prohibit Contracting Parties from exercising jurisdiction over certain cases, including “general doing business jurisdiction”, Many countries feel that this is an exorbitant basis for jurisdiction and wanted to prohibit courts in the United States from using it as a ground for exercising jurisdiction over foreign defendants where there was no connection between the dispute and the forum. See, e.g., David Goddard, “Rethinking the Hague Judgments Convention: A Pacific Perspective”, 3 Yearbook of Private International Law (2001) 27,57; Masato Dogauchi, “The Hague Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters from the Perspective of Japan”, Japanese Journal of Private International Law, No. 3 Part IV: 1 (2002) (forthcoming).
For a thorough description of the process leading up to this point, see Prel. Doc. No. 7, ¶¶ 17–26.
The October Draft of the Convention is available on the Hague Conference’s website along with the report of the Special Commission, drawn up by Fausto Pocar and Peter Nygh at <ftp://hcch.net/doc/jdgmpd 11.doc>.
See The Informational Note on the Work of the Informal meetings held since October 1999 to consider and develop drafts on outstanding items drawn up by the Permanent Bureau, Preliminary Document No. 15 of May 2001 for the attention of the Nineteenth Session of June 2001.
Generally the process of negotiating and drafting a convention at the Hague Conference takes place over a period of four years. After preparatory research by the Secretariat, preliminary drafts of the Convention are drawn up by a Special Commission, made up of governmental experts. These drafts are then discussed and adopted at a Plenary Session of the Hague Conference, which is a Diplomatic Conference. Although this is the traditional procedure, it is not entirely inflexible. For example, the current work being done on the law applicable to certain rights in respect of indirectly held securities is not proceeding along the traditional timeline, but is instead on a “fast track”, Nevertheless, this is a novel approach, considered to be restricted to this particular project, although it may represent a trend for future flexibility in the Conference’s working methods.
See supra n. 27.
The Interim Text, produced during the June 2001 Diplomatic Session is available on the Hague Conference’s website at <http://www.hcch.net>.
The “white list”, articles in the Interim Text include Articles 3,4,6,7,8,9,10,11,12,13 and 15.
Article 17, which represents the “grey list”, simply states that “[subject to Articles 4, 7, 8, 11(1), 12 and 13,] the Convention does not prevent the application by Contracting States of rules of jurisdiction under national law, provided that this is not prohibited under Article 18”
The “black list”, or prohibited grounds for jurisdiction are listed in Article 18, which consists of three subparagraphs. The first subparagraph is a general clause, prohibiting jurisdiction under the national law of a Contracting State “when there is no substantial connection between that State and [either] the dispute [or the defendant]”, if the defendant is habitually resident in a Contracting State. The second subparagraph lists a number of examples that are included within the ambit of the first subparagraph. The third subparagraph is known as the “human rights exception”, and exists because human rights litigation frequently relies on “general doing business jurisdiction”, and “tag jurisdiction”, both of which are prohibited in the second subparagraph. It is, therefore, necessary to include a carve-out provision which would allow human rights claims to go forward, even if based on one of the prohibited grounds of jurisdiction.
Article 25(1) states that “[a] judgment based on a ground of jurisdiction provided by for in [one of the white list articles], or which is consistent with any such ground, shall be recognised or enforced under this Chapter”
The “court of origin”, is the court in which the case was originally brought and from which the relevant party has obtained a judgment. The “court addressed”, is the second court, in which the relevant party is trying to recognise or enforce the judgment, obtained from the “court of origin”
If the court of origin’s ground for jurisdiction is provided for under Article 17, which represents the grey list, it will be dealt with by the court addressed under Article 24, which excludes certain judgments from the recognition and enforcement chapter: “This Chapter shall not apply to judgments based on a ground of jurisdiction provided for by national law in accordance with Article 17, and which is not consistent with any basis of jurisdiction provided for in [the white list Articles]”
See Interim Text, art. 26 (stating that “[a] judgment based on a ground of jurisdiction which conflicts with Articles 4, 5, 7, 8 or 12, or whose application is prohibited by virtue of Article 18, shall not be recognised or enforced”
In the Interim Text competing suggestions made by different delegations or groups of delegations are included as alternatives and bracketed within the text. See the Interim Text at <ftp://hcch. net/doc/jdgm2001 draft_e.doc>
See Interim Text, art. 25(1) (stating that a “judgment based on a ground of jurisdiction provided for in Articles 3 to 13, or which is consistent with any such ground, shall be recognised or enforced under this Chapter”,).
Nevertheless, the widgets are shipped directly from Tunisia to Iceland.
Note that this would be a “white list”, ground for jurisdiction under Alternative A, Variant 2.
For the purposes of this article, the phrase “online contracts”, includes both contracts concluded online and performed offline and contracts that are concluded and performed online, unless otherwise stated.
Variants 1 and 2 take different approaches to what this activity constitutes, but an argument can be made under paragraph 2 of either approach.
For a discussion on the problems raised with regard to the decision-making process at the Hague Conference and an assessment of other issues that have arisen in the course of the Judgments Project, see Arthur von Mehren, “La rédaction d’une convention universellement acceptable sur la compétence judiciaire internationale et les effets des jugements étrangers: Le projet de la Conférence de La Haye peut-il aboutir?”, 90 Revue critique de droit international privé (2001) 86–99.
For a discussion of the difficulties encountered in determining the relative competence of the Commission and the Member States of the European Union in the context of the Judgments Project and the subsequent problems this has caused for the project, see Fausto Pocar, in: Law and Justice in a Multistate World: A Tribute to Arthur T. von Mehren (Symeonides [ed.]) (forthcoming 2002); Ronald A. Brand, “Community Competence for Matters of Judicial Cooperation at the Hague Conference on Private International Law: a View from the United States”, Journal of Law and Commerce (2002) (forthcoming).
See supra n. 27.
For example, the Secretariat of the organisation might consider hiring a technical expert and use his or her knowledge in preparing notes for delegates.
The expression is also used with regard to choice of law, in which case the law of the country where the transmission originated from is the law that applies.
The expression is also used with regard to choice of law, in which case the law of the destination forum(s) apply.
The Hague Conference on Private International Law and the University of Geneva, Press Release: Geneva Round Table on Electronic Commerce and Private International Law (1999) available at <http://www.hcch.net/e/events/press01e.html>.
It should be noted that even if online performance is assumed to take place wherever the buyer is located when concluding the contract, it is not always easy to determine the location of the buyer. See infra n. 58.
Ottawa Report, supra n. 26, 6.
With regard to determining the location of the buyer, see comments of the Software & Information Industry Association (SIIA) submitted to the U.S. Patent and Trademark Office on 12 January 2001 (stating that “[i]n many instances it will be impossible for a seller to determine where the buyer or user of a digitised product is located at the time of the sale or where electronic performance of the contract took place… For instance, when an Internet Software Vendor (IS V) makes its products or services available to users through an Application Service Provider (ASP) business model the IS V will likely have no idea who the users are or where they are located. Further, under the ASP model users of such software could give one address as their billing address, but may access the software products or services from any location in the world that they can get access to the Internet. That jurisdiction, which is never disclosed to the seller, could become the place where disputes are litigated. In short, ISVs and other software and content providers could find themselves being sued anywhere their products and services can be found or accessed.”,). See also International Chamber of Commerce, Jurisdiction and applicable law in electronic commerce (6 June 2001), available at <http://www.iccwbo.org/home/statements_rules/statements/2001/jurisdiction_and_applicable_law.asp> (stating that “[t]he complexity of applying the ‘country of destination’ principle is exacerbated when it is applied where consumers use ‘infomediaries’ or other interposing technologies to purchase goods or services that are digitally transmitted, and pay with digital cash or any other payment mechanism that does not identify the purchaser. In this situation, a business would never know the law and forum to which it subjects itself as the ‘infomediary’ prevents a company from knowing the identity and location of an individual consumer”,).
Reverse domain name hijacking occurs when a trademark owner asserts trademark rights over a domain name even though these rights exceed those afforded to him by law.
It should be noted that paragraph a of Article 10 takes a “country of origin”, approach, but when combined with paragraph b, the final result is a “country of destination”, approach with the additional option of being able to bring suit where the “act or omission that caused the injury oc-curred”
See, e.g., International Chamber of Commerce, Jurisdiction and applicable law in electronic commerce (6 June 2001), supra n. 58 (stating that the “country of destination”, approach taken by some governments [notably Europe under the Brussels Regulation] severely limits greater consumer choice and more favourable prices on the Internet because businesses have responded by limiting the use of their websites through closed systems with established partners or sales to residents of the territories where the companies are already established).
See supra n. 58.
It should be made clear that the original scope of the Judgments Project was restricted to questions of jurisdiction and recognition and enforcement. The resulting Convention was not intended to deal with choice of law issues. See supra Section 3.1. Nevertheless, choice of law issues are inevitably implicated in the issues that arise as a result of rules on jurisdiction.
Consider, for example, trademark disputes. Playboy magazine obtained a trademark injunction in the United States against an Italian magazine called “Playmen.”, Publication of the magazine in Italy, however, was lawful. The Italian publisher then made the magazine available over the Internet from a server in Italy. A federal district court in the U.S. found the publisher liable for violating the injunction and required the defendant to “either shut down PLAYMEN Lite completely or prohibit United States users from accessing the site in the future”, Playboy Enterprises Inc. v. Chuckleberry Publishing Inc., 939 F. Supp. 1032 (S.D.N.Y. July 16, 1996). Unfortunately, because of the current state of technology, the only truly effective way of ensuring that users in the US cannot access the site is to shut it down. See infra n. 82. Another example would be the conflicting legal frameworks that exist with regard to privacy issues between the European Community and the United States. Under the Data Protection Rules of the European Union personal information should not be transferred outside of the European Union to a country that does not have adequate privacy protection. See Directive 95/46/EC of the European Parliament and the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ [1995] L 281/31, art. 25 available at <europa.eu.int/eur-lex/en/lif/dat/1995/en_395L0046.html>. The United States, on the other hand, has avoided the promulgation of comprehensive privacy protection statutes and the possibilities for conflicts between the European Union Directives and laws in the United States are considerable. See F. Lawrence Street and Mark P. Grant, Law of the Internet 252 (Michie 2001). For a more thorough discussion, see Julia Gladstone, “The U.S. Privacy Balance and the European Privacy Directive Reflections on the United States Privacy Policy”, 7 Williamette Law Review (2000) 10. Although a compromise solution has been found with the so-called Safe Harbour provision, developed by the European Commission and the US, conflicts are still possible to the extent that companies do not voluntarily embrace these principles.
See The Impact of the Internet on the Judgments Project: Thoughts for the Future submitted by Avril D. Haines for the Permanent Bureau, Prel. Doc. No. 17 of February 2002 for the attention of the Special Commission of April 2002 on general affairs and policy of the Conference at p. 9, footnote 23 (describing a variety of new legal doctrines, specifically directed at online activity) available at <http://www.hcch.net/e/workprog/jdgm.html>.
The word “presumably”, is used here since it is not necessarily true that the court in the consumer’s home jurisdiction will apply its own national law, however it is certainly likely to do so.
See, for example, comments made by a representative of Consumers International at the June 2001 Diplomatic Session: “The principle that consumers should have the possibility to seek redress before their home courts … was especially important in the electronic marketplace, where consumers could be at a considerable disadvantage if they are subjected to the jurisdiction of distant courts when disputes arise.”, Minutes, No. 14, Commission II, Nineteenth Session (14 June 2001).
It should be noted that there are ODR providers which offer services for offline disputes as well, however those are not relevant here. For a thorough description of the various types of ODR mechanisms available, see Kaufmann-Kohler, Schultz, Langer and Bonnet, “On-line Dispute Resolution: State of the Art and Issues”, at Chapter II (December 2001), available at <www.on-line-adr.org>. The Report is part of an ongoing research project conducted by Gabrielle Kaufmann-Kohler, Law School and Professor Jürgen Harms, Centre universitaire informatique, both of Geneva University, and their research team.
See the Organisation for Economic Co-operation and Development’s (OECD’s) First Report: Government and Private Sector Initiatives to Promote and Implement the OECD Guidelines for Consumer Protection in the Context of Electronic Commerce 9 (February 2001) available at <http://www.olis.oecd.org/olis/2000doc.nsf/c5ce8ffa41835d64cl25685d005300b0/cl25692700623b74cl256a010059dle9/$FILE/JT00103514.DOC>. As the report stated: “[r]ecognising that the global network environment challenges the ability for consumers to obtain effective redress for transactions that occur across national borders, the Guidelines raise alternative dispute resolution (ADR) as a means to provide effective redress and thus encourage continued work. Beyond the OECD Conference in the Hague on 11–12 December 2000, hosted by the Dutch government and co-organised with the Hague Conference on Private International Law and the International Chamber of Commerce, OECD Member countries, other international bodies, and the private sector have been busy holding workshops and conferences, exploring principles for fair and effective online ADR, and developing online ADR mechanisms. As of December 2000, more than 40 online ADR mechanisms had been identified.”
See, e.g., Henry H. Perritt, Jr., “Economic and Other Barriers to Electronic Commerce”, 21 University of Pennsylvania Journal of International Economic Law (2000) 563.
For example, within the European Union, there exists law designed to protect consumers from choice of court and choice of law clauses included in B2C contracts. See Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 27 September 1968, art. 15, OJ [1972] L 299/32, as amended by OJ [1978] L 304/1, OJ [1982] L 388/1, OJ [1989] L 285/1, OJ [1997] C 15/1, OJ [1998] C 27/1, OJ [2000] C 160/1, OJ [2001] L 12/1 available at <http://europa.eu.int/eur-lex/en/lif/dat/1968/en_468A0927_01.html> which deals with choice of court provisions in consumer contracts, along with the Brussels Regulation which came into force within the European Union on 1 March 2002, see Council Regulation (EC) No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, OJ [2001] L 12/1, art. 17 (December 22, 2000) available at <http://europa.eu.int/eur-lex/en/com/dat/2000/en_500PC0689.html>. See also the 1980 Rome Convention on the Law Applicable to Contractual Obligations, opened for signature on June 19, 1980, art. 5, OJ [1980] C 27/34-46, as amended by OJ [1992] L 333/1, OJ [1997] C 15/10, OJ [1998] C 27/34, OJ [1998] C 27/47, OJ [1998] C 27/52 available at <http://europa.eu.int/eur-lex/en/lif/dat/1998/en_498Y0126_03.html> which deals with choice of law provisions in consumer contracts. These agreements and regulations are an example of the type of legislation contained in the national law of many countries in Europe and around the world.
See supra n. 14.
This suggestion was actually raised at the experts meeting in Ottawa. See Ottawa Report, supra n. 26,7 (stating that “[a]nother idea has been put forward: to include in the rule of conflicts of jurisdiction the concept of a ‘target’. If the enterprise has specifically targeted consumers in a particular country, it would be consistent to decide that the courts of that country have jurisdiction for consumers residing on its territory … However, this development has been criticised by some experts, and is not unanimously endorsed as yet.”,).
Consider, for example, the following case: iCraveTV, a small Canadian company provided Internet users with the ability to view television programs over the Internet as they were being broadcast. ICrave’s activities were in fact legal in Canada, but illegal in the United States. iCraveTV “targeted”, Canadians, ostensibly limiting its distribution by conditioning access to its site through three stages of verifications and clickwrap agreements to ensure that only persons located in Canada would access the service. In one of the steps, the potential user was asked to enter their local area code. If the area code was not a Canadian area code, the user was denied access to the service. The difficulty with this seemingly appropriate “targeting”, device is that iCrave’s own Toronto area code was posted on the site. In reality, there were a phenomenal number of users within the United States (US), and thus the impact of iCraveTV was enormous in the US, despite the fact that iCraveTV was ostensibly targeting Canada. In the final analysis, a US court assumed jurisdiction over the case and the parties reached a settlement. For a thorough discussion of this case and other internet jurisdictional cases, see Michael Geist, Is There A There There? Toward Greater Certainty for Internet Jurisdiction (2001) [hereinafter Geist, Toward Greater Certainty] available at <http://www.ulcc.ca/en/cls/index.cfm?sec=4>.
It is worth stressing that the question raised here is one of jurisdiction and not applicable law, although as stated earlier, these issues are intimately related, and in the long run each will require some form of international co-operation. It therefore bears mentioning that some scholars have suggested it to be a violation of international law for any given State to regulate Internet content, when the activity occurs outside of its own territory. However, the Permanent Court of International Justice recognised the “effects”, principle as early as 1927 in the Case of the S.S. Lotus (France v. Turkey), 1927 PCIJ (ser. A) No. 10. In sum, the “effects principle”, permits a State to “prescribe rules for ‘conduct outside its territory that has or is intended to have substantial effect within its territory’”,: Sanjay S. Mody, “Note, National Cyberspace Regulation: Unbundling the Concept of Jurisdiction”, 37 Stanford Journal of International Law (2001 ) 365 [hereinafter Mody] (quoting the Restatement (Third) of the Foreign Relations Law of the United States § 402(1)(c) (1987)). For an outline of the evolution of international case law relating the “effects”, principle, see Mody, ibid., at Part II (A).
For a thorough discussion on various permutations of targeting and effects-based jurisdictional approaches to the, see Geist, Toward Greater Certainty, supra n. 74. In the end Professor Geist suggests a three-factor targeting test that “includes assessments of any contractual provisions related to jurisdiction, the technological measures employed to identify the targeted jurisdiction, and the actual or implied knowledge of the Web site operator with respect to targeted jurisdictions.”, See ibid. at 7. Clearly there are a number of possible compromise positions that have not yet been explored.
One might ask why these concerns are voiced mainly with regard to the Internet and not with regard to traditional print media like newspapers or magazines or even television and radio. It is true that some of the problems discussed here relate to print, video and audio media, but these issues are marginal ones in comparison with the Internet implications. The Internet supports a global marketplace that at this point already represents a substantial part of most countries’ economic landscape. If the Convention were to have a negative impact on the Internet the effect will be magnified because of the number of transactions involved and the scope of the problem. Second, States have already worked out their law and policy with regard to these older forms of communication media to a large extent. Consider for example the many treaties adopted by WIPO in this arena, which can be viewed on their site at <http://www.wipo.org/treaties/a-z.html>. Third, it is frequently possible to restrict the scope of the targeted audience by limiting, for example, the distribution of a magazine or newspaper or by printing a separate edition for different jurisdictions or by effectively blocking channels. Fourth, while it is possible for any individual or very small business to set up shop on the Internet, there is not the same access to these other forms of media.
See Tribunal de Grande Instance de Paris, Ordonnance de référé, 22 May 2000, No RG 00/05308.
Nouveau Code Pénal Art. R.645-2.
Yahoo! Inc. v. La Ligue Contre le Racisme et l’Antisémitisme, 145 F.Supp. 2d. 1168(2001).
Ibid., at p. 1171.
Unfortunately, using blocking technology is not perfect. It is not possible for a website to effectively block all users from a particular jurisdiction — especially in the case of mobile Internet use. See, e.g., On-line Policy Group, Why Blocking Technology Can’t Work (last visited December 3,2001) at <http://www.onlinepolicy.org/outreach/blockcantwork.htm> (stating that blocking technology underblocks and overblocks, does not permit local control without great difficulty, is subjective, error-prone, is easily bypassed and causes problems with computers during installation, maintenance, upgrades, and removal). See also, comments made by a representative of Commercial Internet Exchange at the June 2001 Diplomatic Session who “drew attention to the impact of provisional measures on Internet Service Providers (ISP). Especially injunctive measures could create severe problems. She explained that it was technologically difficult to limit the execution of an injunction to only one country. Consequently a national court could block activities of a company throughout the whole world.”, Minutes, No. 14, Commission II, Nineteenth Session (14 June 2001). See also John T. Delacourt, “The International Impact of Internet Regulation”, 38 Harvard International Law Journal (1997) 207, 213.
Even so, the filters are far from perfect. While goods where “Nazi”, is used in the description are banned, goods described as “Iron Cross”, and “Third Reich”, stay in. The difficulty, of course, is that people will always be able to find creative ways in which to circumvent such filters.
See 2001 WL 1381157 (N.D.Cal.) (2001).
There have already been a number of cross-border cases dealing with such fields as intellectual property, defamation, libel, privacy, racism and freedom of speech where the information was transmitted over the Internet. See, e.g., In re Dulberg, reported on World Internet L. Rep. (February 2001). The Italian case can be found, translated into English, at <http://www.cdt.org/international/001227italiandecision.pdf>. (An Italian Apellate court asserted jurisdiction over a libel case brought by an Italian citizen based on statements and images that had been posted on a website hosted outside of Italy); Hanseatic, 6 U 4123/99 (6 April 2000) (The Munich Court of Appeal held that use of a trademark in the meta-tag of an internet page can infringe the mark); Braintech, Inc. v. Kostiuk, [1999] B.C.C.A. 0169. (The British Columbia Court of Appeals found that a Texas court in the US had improperly exercised jurisdiction over a case involving allegedly defamatory statements posted on the Internet by a British Columbia Resident); Alteen v. Informa Corp. [1998] l64 Nfld. &P.E.I.R. 301,507 A.P.R. 301 (The Newfoundland Supreme Court found a US-based company had issued false and misleading statements on the Internet); Playboy Enterprises Inc. v. Chuckleberry Publishing Inc., 939 F. Supp. 1032 (S.D.N.Y. 16 July 1996) (The US Federal District Court held an Italian website publisher in violation of a trademark injunction in the US). See also, BGHZ 46, 212 (Case Az.: 1 StR 184/00) decided on 12 December 2000 in which the German Supreme Court found a web publisher in Australia liable under German criminal law for posting information which denied the existence of the Holocaust.
It should be noted that in many cases the incentives provided are not to the creator themselves, but to the person or business investing in the creator. By providing rights to investors, the theory is that there will be a continuing interest in supporting creators.
It should be noted that patents and trademarks are actually treated separately under Article 12 of the Interim Text, however copyright is not, and thus these arguments are still relevant.
What might be considered a subset of this debate is waged among legislators who are focused on the Internet and technology and are looking for a liberal regime therein versus those who are traditional jurists, keen to establish a legal framework in this new medium. Some new reports appear to suggest this split within governments. See, e.g., Deborah Hargreaves, “Light Touch on the Web: Europe’s Liberalisers are Gaining the Edge in the Debate Over E-commerce Regulation”, Financial Times, 7 December 1999.
This point is illustrated and discussed in an article by Shira Perlmutter, “Convergence and The Future of Copyright”, 24 Colum-VLA J.L. & Arts 163 (2001).
Interim Text, art. 28(1)(f).
For example, US courts have refused to enforce libel suit judgments from the United Kingdom on the basis of public policy reasons. See Matusevitch v. Telnikoff, 877 F. Supp. 1 (D.C. 1995); Bachchan v. India Abroad Publ., Inc., 585 N.Y.S.2d 661 (Sup. Ct. 1992). On the other hand, there is no such record with regard to cross-border intellectual property judgments.
See The Report on the Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters by Peter Nygh and Fausto Pocar, Preliminary Document No. 11 of August 2000, p. 108 (stating that “recognition or enforcement must be, in the hallowed Hague words ‘manifestly’ incompatible with public policy. This indicates that the weapon of refusal must be rarely invoked and only as a last resort. The fact that the original court applied a law different to that which the court addressed might have applied should not suffice.”,).
Interim Text, art. 21(1).
Such as a tort for false advertising.
Council Regulation (EC) No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, Art. 5,16 (December 22,2000) [hereinafter Brussels Regulation]. The Brussels Regulation is based on the Brussels and Lugano Conventions. See Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 27 September 1968,OJ [1972] L 299/32, as amended by OJ [1978] L 304/1, OJ [1982] L 388/1, OJ [1989] L 285/1, OJ [1997] C 015/1, OJ [1998] C 027/1, OJ [2000] C 160/1, OJ [2001] L 012/1 [hereinafter Brussels Convention] available at <http://europa.eu.int/eur-lex/en/lif/dat/1968/en_468A0927_01.html>; Lugano Convention on Jurisdiction and Enforcement of Judgments on Civil and Commercial Matters, 16 September 1988, OJ [1988] L 319/9, reprinted in 28 I.L.M. 620 (1989) [hereinafter Lugano Convention]. For a thorough explication of how these two Conventions operate, see Alexander E. Anton & Paul R. Beaumont, Civil Jurisdiction in Scotland: Brussels and Lugano Conventions, 2nd ed. (Edinburgh: Green 1995); Jan Kropholler, Europäisches Zivilprozessrecht, Kommentar zu EuGVÜ und Lugano-Übereinkommen, 6th ed. (Heidelberg: Recht und Wirtschaft 1998); Hélène Gaudemet-Tallon, Les Conventions de Bruxelles et de Lugano — compétence internationale, reconnaissance et exécution des jugements en Europe, 2nd ed. (Paris: Librairie générale de droit et de jurisprudence 1996).
See supra n. 6.
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ [2001] L 167/10.
Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures, OJ [1999] L 13/12.
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ [1995] L 281/31. See also the Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ [1996] L 77/20; the Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, OJ [1991] L 122/42.
See infra n. 105
As noted in the United Kingdom’s Department of Trade and Industry report on the E-commerce Directive, “[t]here is some debate within and between Member States and the European Commission about the precise ambit of the country of origin provisions in the Directive, and particularly around the … extent of the ‘coordinated field’ of regulation to which it applies”, UK Dept. of Trade & Industry, The Electronic Commerce Directive (00/31/EC), at Chapter 2 (last visited 31 January 2002) available at <http://www.dti.gov.uk/cti/ecommerce/europeanpolicy/ecommerce_directive_chapter2.html>
See P. Mankowski, “Das Herkunftslandprinzip als Internationales Privatrecht der e-commerce-Richtlinie”, Zeitschrift für das vergleichende Rechtswissenschaft, ZvglRWiss (2001) 100, 137, 175–176 (with numerous references); Gerald Spindler, “E-Commerce in Europa. Die E-Commerce-Richtlinie in ihrer endgültigen Fassung”, MultiMedia und Recht (-Beilage) (7/2000) 4, 19. See also, Erik Jayme and Christian Kohler, “Europäisches Kollisionsrecht 2001: Anerkennungsprinzip statt IPR?”, IPRax (2001 ) 501.
See E-commerce Directive, Recital 5.
For example, an industry group in Europe noted that it welcomed the final text of the E-commerce Directive and its “country of origin”, principle, although it was still not happy with the “country of destination”, approach taken in the Brussels Regulation which means that an “e-merchant risks being brought before court in all 15 Member States”, Federation of European Direct Marketing, e-Commerce (last visited 31 January 2002) available at <http://www.fedma.org/code/page.cfm?id_page=74>.
Particularly in light of the fact that this approach requires that courts seised by consumers in their habitual residence will find themselves applying the foreign law of the supplier’s country. Generally, it is not considered to be a good idea to set up a private international law framework in which courts are regularly required to apply foreign law, since judges will inevitably be dealing with a system of law they are unlikely to be familiar with and will presumably make more mistakes in its application. One can see how this would be particularly onerous in a world-wide convention. For example, imagine having a Chinese court apply French law to an Internet case brought by a Chinese consumer in China, against a French merchant.
Rome II which is intended to harmonise Member State rules relating to conflict of laws in non-contractual matters exemplifies this difficult debate. It too has been the subject of considerable controversy within Europe and has alternatively been drafted to take a “country of origin”, or a “country of destination”, approach to choice of law. See Paul Meller, “Europe Panel is Rethinking How it Views E-commerce”, N. Y. Times, 27 June 2001. The most recent unofficial draft from September 2001 takes a “country of destination”, approach and thus, businesses have been extremely critical, noting that “[i]f adopted in its current form, [Rome II] would leave a patchwork quilt of national rules which are quite different from each other — in some cases even contradictory”, Paul Meller, “Proposed Law Stirs Concern on Europe E-Commerce”, N. Y. Times, 8 February 2001 (quoting Thomas Vinje, a partner at a law firm in Brussels). In particular, there have been concerns that the regulation would be inconsistent with the “country of origin”, approach taken in the E-commerce Directive. See Peter Chapman, “Vitorino Shelves ‘Rome II’ plan following attacks”, European Voice, Vol. 6, No. 29 (20 July 2000).
See the “Opinion of the Economic and Social Committee on the ‘Proposal for a European Parliament and Council Directive on certain legal aspects of electronic commerce in the internal market’”, OJ [1999] C 169/14 (15 April 1999).
Ibid.
Computer Industry Almanac, Press Release: “There will be 625 Million Computers-in-Use Year End 2001-July 2001”, at <http://www.c-i-a.com/200107cu.htm> (last visited 7 February 2002).
See Treaty establishing the European Community, incorporating changes made by Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts [hereinafter Treaty of Amsterdam] (stating that the activities of the Community shall include the strengthening of economic and social cohesion and, among other common policies, a “common commercial policy”,).
For example, the International Chamber of Commerce (ICC) has formulated Uniform Rules on Electronic Trade Settlements (1999) Parts I, II and III; Model clauses for use in contracts involving transborder data flows (1998); Guidelines on Internet Advertising and Marketing (1998); A Recommended Code of Practice for Competition Authorities on Searches and Subpoenas of Computer Records (1998); General Usage for International Digitally Ensured Commerce; International Customs Guidelines (GUIDEC I) (1997). In addition, the ICC is currently formulating Uniform Rules on Electronic Trade Settlement, an E-terms Repository, an International Electronic Sales Model Contract and an updated guide for the General Usage for International Digitally Ensured Commerce (GUIDEC II). The OECD has promulgated Guidelines for Consumer Protection in the Context of Electronic Commerce (March 2001); The World Intellectual Property Organization (WIPO) has produced a Digital Agenda which sets out a series of guidelines and goals for WIPO in seeking to develop practical worldwide solutions to the challenges raised by the impact of e-commerce on intellectual property and of particular interest, the Director General has released a memorandum titled the Proposed Joint Recommendation Concerning Provisions on the Protection of Marks, and Other Industrial Property Rights in Signs, on the Internet, Doc. A/36/8 (18 June 2001) available at <http://www.wipo.int/eng/document/govbody/wo_gb_ab/doc/a36_8.doc>. To view the organisation’s work, visit its website at <http://ecommerce.wipo.int/index-eng.html>. The United Nations Commission on International Trade Law (UNCITRAL) has done a great deal in the area of e-commerce. To highlight a few critical projects, it has adopted the UNCITRAL Model Law on Electronic Signatures (2001) and the UNCITRAL Model Law on Electronic Commerce with Guide to Enactment (1996), with additional article 5bis as adopted in 1998. In addition, they are working on a draft convention dealing with legal aspects of electronic contracting and are discussing future work in the area of electronic transfer of rights in tangible goods and other rights in the context of e-commerce. The World Trade Organization (WTO) has adopted a work programme on electronic commerce that requires the WTO Councils on Goods, Services, TRIPS (intellectual property) and Trade and Development to examine issues raised by electronic commerce. The various Councils’ Reports on their progress can be found on their website (<www.wto.org>). It is interesting to note, however, that they are proceeding with care. For example the December 4, 2000, report from the Council for Trade-Related Aspects of Intellectual Property Rights stated that “[t]he TRIPS Council continues to hold the view expressed in the Council’s earlier Progress Report that the novelty and complexity of the intellectual property issues arising in connection with electronic commerce are such that continued further study is required by the international community to better understand the issues involved”, Paragraph 9 of Document IP/C/20.
A digital signature is a type of encryption technology that uses asymmetric cryptography to create unique digital keys that, when used together, provide both data security and authenticity. The development of digital signatures in e-commerce has produced a proliferation of legislation governing digital signature transactions with the purpose of increasing the confidence of businesses and consumers in the security of transactions conducted electronically.
Of course this raises a very difficult question as to whether or not it is possible to define areas of information effectively in order to negotiate them separately, although it has certainly been done in the case of intellectual property. At any rate, this question is outside the scope of this article.
For example, the suggestion was made at the experts group meeting in Ottawa that jurisdiction asserted solely on the existence of an Internet site with nothing more, might be added to the black list and thus prohibited. See Ottawa Report, supra n. 26, 9.
Among the problems discussed were several drafting problems with regard to Articles 6,7, 9 and 10 dealing with B2B contracts, torts and branch offices. See generally Ottawa Report, supra n.26.
See Avril D. Haines, The Impact of the Internet on the Judgments Project: Thoughts for the Future, supran. 55, at pp. 17–19 (describing specific problems with Articles 6,7,8,9, 10 and 13).
A substantially similar provision was added to Article 6 and 7 with the same purpose of attempting to deal with the onerous extension of jurisdiction over Internet users, however clearly the same problem described here with regard to its interpretation in Article 10 applies to these other provisions as well.
See Avril D. Haines, The Impact of the Internet on the Judgments Project: Thoughts for the Future, supra n. 55, at pp. 19–22.
Groups such as the Hague Conference, UNCITRAL, OECD, WTO, WIPO and various interested NGO’s such as the International Law Association, Consumers International, International Publishers Association, International Trademark Association, Fédération Internationale des conseils en Propriété Industrielle, ICC and The Internet Law & Policy Forum.
For example, online consumers may find it harder to protect themselves against fraud in an online environment, but may be in a stronger position to negotiate with regard to, for example, price. The underlying norm may be the same, i.e. it is important to protect the weaker party, but the policy reflecting the norm may require adjusting.
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Haines, A.D. Why is it so difficult to construct an international legal framework for e-commerce? The Draft Hague Convention on Jurisdiction and the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters: A Case Study. Eur Bus Org Law Rev 3, 157–194 (2002). https://doi.org/10.1017/S1566752900000859
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DOI: https://doi.org/10.1017/S1566752900000859