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/