4th INTERNATIONAL WEEK:Internet Communication Management Academic Courses7-12 April 2014, University of Economics Katowice (Poland)

Gloria Esteban de la Rosa

Chair Professor of Private internacional Law

University of Jaén (Spain)

4th INTERNATIONAL WEEKInternet Communication Management

Academic Courses

First Part:

Internet and international electronic contracts

Second Part:

Online international contracts: General terms and conditions

Internet and International Electronic

Contracts

International Contracts

Consumer Contracts

B2C

Glossary Domain Name

System (DNS) Information society

service: on-line commercial activities

Electronic International Contracts (IEC)

IP adress

International Trade E-Commerce Small and Medium

Enterprises (SME E-Commerce Directve

2000 General Terms and

Conditions Abusive Terms

International Electronic ContRacts (IEC)

For speaking about IEC is necessary to make reference to INTERNET INTERNET

What is Internet? Virtual communication

environment or channel

Internet and IEC Internet is a global network of

interconnected packed-switched networks that uses the TCP/IP (Transmission Control Protocol/Internet Protocol) suite of protocols

Internet relies on an addressing system

International Electronic ContRacts (IEC)

What is the primary function of Internet in the international Trade?

What do you think about this? (certainty, simplicity…)

Internet

In addition to a computer-readable IP adress, each host computer connected to the Internet is assigned a human-redable name, known as Domain Name

The main purpose of the Domain Name System (DNS) is to map domain names to IP adresses

Attaching both a name and a adress to a single computer creates a need for a system to correlate, or “map” human-friendly domain names to computer-friendly IP adresses

International Electronic Contracts Domain Names (DN)

What are DN?

Why are so important DN for the International Trade?

The Domain Name System is a hierarchical database of Internet name, address and associated information: Top-Level Domains, and Second-Level Domains…

DNS Governance and ICANN

Internet Corporation for Assigned Names and Numbers

ICANN is a non-profit –making public benefit corporation incorporated under the California Nonprofit Public Benefif Corporation Law

Cybersquatting Because DN are designet to be easily remembered

by people, business began to use them as a means of identifying themselves and their products

Since this moment, DN have developed into an accepted and important form of identification, both on-line and off-line

DNS and intellectual Property rights

DN is not merely an Internet address but, as it is an adress in human-friendly language, it also communicates a meaning

Consequently, the use of a real worl identifier, such as a trade mark or famous name, as a DN may communicate some association between the domain name and the owner of the real world identifier

Abusive, Bad Faith Registration…

Problems arising in relation with the use of DN in the international business

WIPO (World Intellectual Property Organisation)

WIPO

Has developped legal principles under national trade mark and unfair competition laws

E-commerce

First of all, it is necessary to define the term

WTO: the production, distribution, marketing, sale or delivery of goods and services by electronic means

E-commerce

A narrow understanding of e-commerce entails that it refers simply to the electronic conclussion of a contract (or a electronic contract)

Internet is an open structure allowing, in principal, trading with an unlimited amount of trading partners

E-commerce and Internet

Internet has bossted e-commerce and is a prominent medium for e-commerce especially for small firms, for whom internet is an easy point of entry into the electronic business environment

Use of electronic tools for the commercialization of products and services

The use of electronic tools has called for a Revision and an Adaptation of the existing regulatory framework

To eliminate the legal insecurity which previously surrounded these transactions; and

To guarantee a high level of harmonization in the legal system of European Countries

Nevertheless

Internet has an inherent international nature

Controversially, the majority of legal rules is bound to geographic areas

E-commerce Law

Regulatory inicitives of the EU

The E-Commerce Directive (Directive 2000/31/CE)

WTO work Program

E-Commerce Directive on legal aspects of information society services

His aim is to establish a legal framework that ensures that information society services can fully benefit from internal market

The Directive hopes to lay down a clear legal framework to enhance legal certainty and consumer confidence

E-commerce Directive

To try to balance the interests of consumers and the interests of business organisations

E-Commerce Directive

E-Commerce Directive prescribes that the Member States have to remove any legal barriers that obstruct the development of electronic trade within the internal market

To sum up, Purposes of E-Commerce Directive are the following: To enhance legal certainty To remove any legal barriers To establish a legal framework in the

European Market To balance the interests of consumers and

interests of business organisation

E-commerce Directive E-commerce Directive introduces harmonised rules

on the following issues:

- General information requirements for providers of information society services

- On-line advertising (commercial communications)- Electronic contracting, and - Liability for intermediaries such as internet services

providers (ISPs)

E-Commerce Directive: Key Provision

Country of origin Principle: This principle entails that cross-border e-

commerce activities only have to comply with the laws of the country of establishment of the company

Geographical applicability

The E-commerce Directive is directed at the Member States of the EU

The Directive should not apply to services supplied by service providers established in a third country

E-Commerce Directive

This regulation seeks neutrality and generality to avoid divergences in its application in the Member States.

The main difficulties are still those related to uncertainties surrounding the set-up of an international electronic contract

Another problem:

Responses are territorially localised, which contrast with the intrinsic international nature of internet and the electronic means

E-contracting Various manners to

conclude an electronic contract

Electronic agents are software programs containing instructions of the user of the agent

On-line auction. E-Bay

Electronic marketplace is an on-line forum with a number of participants that use the forum to find business partners, exchange information and possibly come to an agreement

International E-Contracts Identification of the

foreign element: difficulties

Uncertainty that surrounds establishing whether it is an internal or external traffic relationship

For exemple: The single fact of a

domain name being registered abroad does not seem to justify the specific system of rules of Private international Law to apply to electronic contracts formalised under such circumstances

But, this same element is relevant in case of litigation derived from the registration of the aforesaid domain name abroad.

That means that: Depending on the question that arises, it is

possible to consider the existence of a foreign element to decide if we are in the presence of a International Electronic Contract

From the point of view of contract Law, it is not possible in this case (Domain Name registered abroad) to consider one International Contract

But, at the same time: Internet is a worldwide

network and, for this reason, it is not possible to establish the differences between internal and international situations

It can be said that a large amount of the doubts and problems arising upon electronic contracting does refer to the uncertainty that surrounds establishing whether it is an internal or external traffic relationship

And, at the same time:

Most legal systems says that contract are formed by Offer and Acceptance

But, problems can occur when it needs to be determined when there is –legally speaking- an offer and when this can be considered accepted, resulting in a legally binding contract

International E-Contracts

Differences between Web-Page and Web-Site

First Question:

What legal system qualifies the content of a WebSite?

WebPage and website

The existing rules with regard to contract formation equally apply to on-line contracting

P. Blanchard: “Offer and Acceptance in International Contract negotiation. A comparative Study”, International Business Law Journal, 2008, p. 3 …

Active and Passive Web-Sites

Two types of Web-Sites:- Those which merely give information in the

form of banners, and

- Those which users can place orders on line, visit virtual shops…

Active Web-siteS

Definition: operative website where transactions can be made although they may requiere an external specialized service to carry them out

Active or dynamic websites offer users the possibility to purchase goods and services using electronic contracts

Formation of International Electronic Contract

E-Commerce Directive doesn’t decide the conclusion of the IEC

This is a question of Private International Law of each European Member States

In every case:

Offer: unilateral declaration of will

Acceptance: act of admission of an offer

Moment of acceptance? An offer occurs as electromagnetic signals

represented by a string of codings and conversions in readable language

Depends con the communicative tool used by the parties on intenet: “without compromise”, “subject to confirmation”

ACK: Acknowledgement or Recognition

Return message confirming that specific destination communication effectively reached (in the disciplines and communication technologies)

NACK: Negative Acknowledgement

It communicate errors that have been detected

Investigation Project Strengths and

Weaknesses in the Internationalisation of Spanish Businesses in The Olive Olil Sector, financed by the Ministry of Economy Innovation and Science of the Governement of Andalusia (2011-2015)

http://www.yoexportoaceite.com/