E-commerce Law

Jurisdiction

Jurisdiction

Jurisdiction is relevant to e-commerce law in 2 ways:

1. Private International Law

2. Taxation implications

Private International Law

E-commerce law is by its very nature international.

When you have international contracts, you have international disputes.

In which country's court should a dispute be heard?

Private International Law

Deciding which countries courts’ have jurisdiction to hear a dispute comes under Private International Law.

Private International Law

Every country has its own rules on jurisdiction.

It is not possible to cover each and every country and therefore we shall have to look at the main principles.

If there is a jurisdictional problem then each particular country should be examined individually.

Private International Law

Deciding which countries courts depends upon 2 things

1. Whether there is an International treaty in existence?

2. Whether or not there is a ‘jurisdiction clause’ in a contract.

International Conventions

There is no international convention that covers every country in the world.

There is some movement towards a worldwide International Convention, although it has yet to be implemented.

www.hcch.net

International Conventions

There are two conventions that cover Europe.

1. Brussels I

2. Lugano

International Conventions

Brussels I

This covers all of the countries of the EC

Lugano

This covers all of the countries of the EC and also the European Free Trade Association

Brussels I

Brussels I is a revamped version of the Brussels convention of 1968.

The Brussels Convention was revamped by EU Regulation 44/2001.

Brussels I – main provisions

In certain circumstances Brussels I determines whether one country has exclusive jurisdiction (Article 28)

None of these circumstances really apply to e-commerce.

Jurisdiction Clause

Under Brussels I, an EU national can nominate any other EU country to have jurisdiction for dispute resolution.

If there is such a clause then this will override any national law.

No Jurisdiction Clause

If there is no jurisdiction clause then Brussels looks to the country of domicile of the defendant.

Brussels also allows for special jurisdiction where the contract is performed.

No Jurisdiction Clause

This special jurisdiction allows for an action to be brought in the country where the contract would be performed.

Enforcement

If a court has determined against a foreign national and that foreign national refuses to abide by the decision, an enforcement action needs to be brought within the jurisdiction of the defendant.

Outside Brussels I

Rome Convention on the Law Applicable to Contractual Obligations.

Who is the characteristic performer?

What if the Rome Convention has not been incorporated?

Jurisdiction and Tax

“Digitised products and services can be delivered from anywhere on the planet to anywhere on the planet, provided that adequate telecommunications exist.”

It is therefore possible for a business to site their server anywhere in the world to take advantage of tax breaks.