|
Report on draft UNCITRAL
Convention on electronic contracting
5 December 2001
Ad Hoc ICC Expert Group*
* Members of the Expert
Group have included Mark Bohannon, Charles Debattista, David Fares, Christina
Hultmark Ramberg, Christopher Kuner, Anna Nordén, Heather Shaw, and Aleksandar
Stojanoski. The views expressed herein are th
e personal opinions of the members
of the Expert Group, and not necessarily those of the organisations they represent.
Executive Summary
The ICC Ad Hoc Expert Group welcomes Wp.95 and the Working Group's desire to
create increased legal certainty for online contracting. ICC has received a
number of responses to a questionnaire it sent out to companies, giving them
the opportunity to express their opinions in the field of electronic commerce
and electronic contracting; the questionnaire is reproduced in the Appendix
at the end of this report, together with the responses received to it at the
time this report was finalised. The views of the ICC Ad Hoc Expert Group expressed
in this report have been influenced by the responses received, which generally
favour harmonisation as a means for reducing legal uncertainty in online contracting.
The Expert Group will continue to update the Appendix as further responses are
received, and will be happy to make the results available to the UNCITRAL Secretariat
and Working Group.
The Expert Group believes
it is important that the principles of freedom of contract and party autonomy
be very strongly anchored in the convention, in order to avoid misunderstandings,
and to ensure that business has confidence in it. The Expert Group also suggests
that the Working Group carefully consider whether the convention should apply
only to electronic contracts, or to commercial contracts in general, and to
keep in mind that there may be a number of problems in regulating electronic
contracts separately from all commercial contracts. The Expert Group also believes
that it would be important to clarify the interaction between any convention
on electronic contracting and CISG.
The Expert Group agrees
that it is appropriate for the convention to address also contracts outside
the sphere of the sale of goods. However, the question of whether the convention
should also cover transactions in intellectual property (such as licensing transactions)
should be studied further. The Expert Group found no consensus on whether transactions
in intellectual property should be included in the potential work. As a matter
of pragmatism the Expert Group recommends that the UNCITRAL negotiations on
a convention exclude consumer contracts, by use of the same definition as in
CISG.
With regard to whether the
convention should cover domestic or international transactions, the Expert Group
finds that the concept described in Wp.95, whereby the enacting states may choose
not to make the convention applicable to domestic transactions, but where the
default position of the convention is that it is applicable also to domestic
transactions, is worthy of further consideration. The Expert Group favours the
adoption of legal rules that would make it easier to ascertain the location
of the parties, as long as certain dangers inherent in such rules are avoided.
In terms of substantive
legal issues concerning the formation of contracts, the Expert Group finds it
particularly important to achieve harmonisation in the areas of conclusion of
contracts, incorporation of terms, mistake and input errors.
1. Introduction
The ICC Ad Hoc Expert Group
welcomes the Secretariat's Note "Electronic contracting: provisions for
a draft convention" of September 20, 2001 ("Wp.95", available
at http://www.uncitral.org/e
n-index.htm) and the Working Group's desire to create
increased legal certainty for online contracting. At the UNCITRAL Commission
meeting in July 2001, ICC was asked to produce a report presenting business'
views on the need for a convention on electronic contracting. In order to gain
a thorough understanding of business' view, ICC sent out a questionnaire giving
companies the opportunity to express their opinions in the field of electronic
commerce in general, and electronic contracting in particular. The questionnaire
was sent out to a wide variety of companies in various business and geographic
sectors around the world; the questionnaire is reproduced in the Appendix at
the end of this report, together with the responses received to it at the time
this report was finalised, which generally favour harmonisation as a means for
reducing legal uncertainty in online contracting. The views of the Expert Group
expressed in this report have been influenced by the responses received. The
Expert Group will continue to update the Appendix as further responses are received,
and will be happy to make the results available to the UNCITRAL Secretariat
and Working Group.
This report is drafted based
on the assumption that there is a need for a convention (or other international
instrument) dealing with the issues of contracting. It will not further discuss
the need for a convention, but will focus on the scope of such a convention
as well as on the substantive issues a convention should deal with.
The objective of this report
is not to be a response to Wp.95, but rather to highlight the main issues. At
the same time, since most issues of relevance to business have been identified
as important areas also by the Secretariat, the Expert Group will use Wp.95
as a reference so as to avoid reiterating the legal background.
This report poses several
questions to the Working Group. It is our belief that the Working Group should
discuss and consider these questions prior to embarking on its work, so as to
appropriately define the scope of the project. The Expert Group will, at the
same time, continue its outreach to the broader business community to further
develop its views on these questions. ICC is keenly aware of the commercial
significance of the UNCITRAL project, and therefore hopes to continue actively
to participate in this work and to provide more detailed comments on the project
as it develops into a draft. In so doing, ICC will be able to draw on its wide
international base of practical business experience.
2. Sphere
of application
2.1
Party Autonomy and Freedom of Contract
As a preliminary comment, the Expert Group would like to stress that, in its
view, it is important that the principles of freedom of contract and party autonomy
be very strongly anchored in the convention, whatever form it may take. This
should be non-controversial, since CISG already recognises these principles,
and there is no suggestion in Wp.95 that the situation should be different in
the new convention. However, for avoidance of misunderstanding, and to ensure
that business has confidence in the convention, the Expert Group favours a strong
affirmation in it that its rules are default rules that parties may derogate
from. The Expert Group also believes that it would be important to clarify the
interaction between any convention on electronic contracting and CISG.
2.2
Specia
l regulation for e-contracts
(See Wp.95 paras. 10-12)
The aim
of UNCITRAL's work on an international instrument dealing with certain issues
of electronic contracting is to eliminate legal barriers to international transactions
that exist due to the international disharmony of law. The first question to
ask is whether these barriers are particular for electronic contracting, or
whether they exist for all international commercial contracting.
Many of the responses to
the questionnaire have expressed the view that contracts concluded by electronic
communication should preferably not be regulated differently from contracts
concluded by other means of communication. This is a point of fundamental importance,
and the Expert Group suggests that the Working Group carefully consider whether
the convention should apply only to electronic contracts, or to commercial contracts
in general. In particular, the Expert Group would like to point out that there
are a number of problems in regulating electronic contracts separately from
all commercial contracts:
a) The Expert Group
would like to question the definition as suggested in paras. 10 and 11 of
Wp.95 and in Article 1 of the Preliminary draft convention attached as Annex
I to Wp.95, which refers to "contracts concluded or evidenced by means
of data messages". In fact, many contracts are concluded by a mixture
of oral conversations, telefaxes, paper contracts, e-mails, and web communication.
Thus, the term "contracts concluded or evidenced by means of data messages"
proposed in Wp.95 could create practical problems in determining to what extent
the convention is applicable.
b) The practical problems encountered in relation to electronic contracts
are in many cases not specific to the electronic environment, but arise in
all international dealings, whether electronic or not. While it is true that
some adaptation of traditional contracting rules may be needed to accommodate
issues that arise with particular frequency in electronic commerce (such as
the definition of "sent and received"), this does not mean that
some of these issues may not be just as troublesome in the context of "traditional"
contracting. Thus, there is reason to consider having the convention address
the applicable legal issues in a media-neutral way.
2.3
Should the convention be applicable to goods only?
(See Wp.95 paras. 13-14, 20-22)
The Expert
Group agrees with paras. 13-14 of Wp.95 that it is appropriate for the convention
to address also contracts outside the sphere of the sale of goods. It is particularly
important that the convention also cover transactions in services.
Paras. 20-22 of Wp.95 suggest
that the convention should also include transactions in intellectual property,
such as licensing transactions. The Expert Group would like to point out that
transactions in intellectual property may give rise to different issues than
those that arise in relation to the sale of goods and services. The Expert Group
could not reach consensus on this question, reflecting these substantive and
procedural concerns, and believes that it should be studied more carefully by
the Working Group.
2.4
Should the convention be
applicable to consumers?
(See Wp.95 paras. 15-19)
As reflected
in the responses to the questionnaire, the Expert Group sees a need for guidance
with respect to consumer contracts concluded by electronic means. However, as
a matter of pragmatism the Expert Group recommends that the UNCITRAL negotiations
on a convention exclude consumer contracts, for various reasons. First of all,
many States see consumer rights as a matter of ordre public, so that it could
be very difficult to reach agreement on any substantive rules. Having the convention
applicable to consumer transactions would also likely make the deliberations
so controversial that there is a substantial risk that no consensus would be
reached. Another concern is that it would not be feasible to allow sufficient
room for the principle of freedom of contract if consumer transactions were
to be included.
As to the means of excluding
consumer transactions, the Expert Group would like to recommend that the convention
use the same definition as in CISG, as suggested in Wp.95 para. 16. By so doing,
it would be possible to benefit from the experiences and case law related to
CISG. It is possible to arrive at a wide variety of definitions of "consumer
transaction". The optimal solution would be if all instruments (national
or international) use the same definition, but this will not be the case within
the foreseeable future. The Expert Group therefore recommends that UNCITRAL
use the same definition in all UNCITRAL conventions.
CISG Article 2(a) ("unless
the seller, at any time before or at the conclusion of the contract, neither
knew nor ought to have known that the goods were bought for any such use")
may create problems in the electronic setting, since the other party's capacity
of being a consumer or businessman may be hidden (see Wp.95 paras. 18 and 19).
This problem should be discussed further. The Expert Group recommends that the
wordings in CISG Article 2(a) referring to the seller's knowledge be included
in the new convention.
2.5
Should the convention be applicable to international contracts only?
(See Wp.95 paras. 25-36)
It is preferable
that same rules apply irrespective of whether a transaction is domestic or international.
By having the same rules for domestic and international transactions, a business
may use the same interface for all its operations, and customers thus become
used to this interface in all their dealings. However, the Expert Group acknowledges
that such a wide scope of application will create difficulties in reaching consensus
in the Working Group. Many states will likely be less willing to accept and
ratify a convention that interferes with their law for domestic transactions.
The Expert Group thus finds that the concept described in Wp.95 para. 36 and
draft Article 1 variant A, whereby the enacting states may choose not to make
the convention applicable to domestic transactions, but where the default position
of the convention is that it is applicable also to domestic transactions, is
a potentially useful approach, but that further consideration of this issue
is needed before a decision is taken.
The definition of international
transactions should be the same as in CISG, which will make it possible to benefit
from case law that has developed for CISG. Moreover, it would generally be good
if the conventions were to have the same scope
of application in this respect.
2.6
Location of the parties
(See Wp.95 paras. 37-46)
The Expert
Group shares the view expressed in WP.95 that considerable legal uncertainty
is presently caused by the difficulty of determining where a party to an online
transaction is located; while this danger has always existed, the global reach
of electronic commerce has made it more difficult than ever to determine location.
This uncertainty can have important legal consequences, since the location of
the parties is important for issues such as jurisdiction, applicable law, and
enforcement. The responses to the questionnaire support this view as well.
Wp.95 makes a number of
suggestions to deal with this uncertainty, including 1) requiring the parties
to a contract concluded electronically to clearly indicate where their relevant
places of business are located; 2) establishing a presumption that a party's
place of business is the one indicated as such by it; and 3) determining circumstances
from which the location of the relevant place of business can be inferred. The
Expert Group finds much to support in these suggestions, since they could lead
to increased legal certainty, but would like to point out a few potential problems:
- The consequences of a
party failing to comply with one of these provisions would have to be considered
and well defined. For instance, the Expert Group believes it is important
to avoid the situation foreseen in the EU E-Commerce Directive (which is referred
to in Wp.95 as the inspiration for some of these provisions) whereby the parties
are obliged to fulfil certain informational obligations, but it is not clear
what the consequences are if they fail to do so (i.e., whether they can be
sanctioned, whether the contract is void or voidable, etc.), since this situation
itself creates considerable legal uncertainty.
- As Wp.95 points out,
it could be advisable to adopt provisions to avoid situations where a party's
indication of a place of business would serve no purpose other than to circumvent
the new instrument or trigger its application in cases that would fall outside
its scope. However, the Expert Group would like to point out the difficulty
of drafting such provisions and the danger of including provisions which are
overly complex and limit the parties from legitimately indicating their places
of business.
- The Expert Group would
also like to warn of the danger of overly-simplistic rules based on indications
that may seem to be conclusive, but in fact may have little or no connection
with a party's true place of business (e.g., when a party uses a country-level
domain name); the Expert Group is encouraged by the fact that Wp.95 seems
to recognise this danger.
3. Substantive
issues on formation of contracts
The majority of responses
received to the questionnaire recognise that disharmony in law regarding formation
of contracts is an obstacle to electronic commerce.
3.1
Conclusion of contracts
(See Wp.95 paras. 49-54, 63-66)
As described
in paras. 64-67
of Wp.95, the concept of offer and acceptance, although very
well established in many jurisdictions, causes problems both from practical
and theoretical points of view. The Expert Group would like to recommend that
the wording of the UNIDROIT Principles of International Commercial Contracts
Art. 2.1 ("A contract may be concluded either by the acceptance of an offer
or by the conduct of the parties that is sufficient to show agreement")
be considered in relation to formation of contract, in order to ascertain and
inform the parties that a contract may be concluded also by other means than
the offer and acceptance model.
The Expert Group believes
that it is important to specify to what extent electronic offers are binding
offers or only invitations to treat. In the questionnaire, business has expressed
concerns about the present uncertainty in this respect.
3.2
Dispatched and Received
(See Wp.95 paras. 59-62)
The Expert
Group would find it useful to include in the convention rules on when a message
is 'received' and 'dispatched'.
3.3
Automated transactions
(See Wp.95 paras. 71-73)
The Expert Group would like to question the practical need for regulating
automated transactions specifically. The issues regulated in draft Article 12
are already, or should be, answered in other draft Articles. The rule on formation
follows from draft Article 8 (at least if the wording is amended as proposed
above). Errors should be dealt with separately and for all types of electronic
mistake, whether in an automated situation or not (see
below).
Further, the Expert Group
is afraid that it will be problematic to distinguish automated transactions
from semi-automated transaction and non-automated transactions, which is another
reason for not regulating automated transactions specifically.
3.4
Form requirements
(See Wp.95 paras. 85-89)
The Expert
Group agrees that the convention need not address the issue of form requirements
(paras. 85-87 of Wp.95). The Expert Group sees no need to include articles on
signature and writing requirements in the convention, since the convention -
like CISG - ought to be based on the general rule that no form requirement is
needed (paras. 88-89 of Wp.95) and - like CISG - allow for reservations from
the convention with respect to form requirements.
3.5
Incorporation of terms
(See Wp.95 paras. 67-69)
The results
from the questionnaire demonstrate that incorporation of terms is an area where
business currently sees problems causes by disharmony of national laws. However,
incorporation of terms by reference is an oft-debated problem not only in the
electronic environment. The decisive question is how much attention needs to
be brought to the incorporation for it to be legally valid. This problem remains
the same in the electronic environment.
The Expert Group suggests
that UN
CITRAL try to solve the general problem of incorporation of standard
terms with a particular focus on standard terms in the electronic setting. This
could be addressed in the convention in a general manner. Guidance can be found
in UNIDROIT Principles Articles 2.20, 2.21, and 2.22.
The Expert Group acknowledges
the difficulties in solving the battle of forms problems. However, an attempt
at solving the problem is included in CISG Article 19, which could be repeated
and possibly also improved in a new convention.
3.6
Input errors and mistake
(See Wp.95 paras. 74-79)
The results
from the questionnaire show that business also is unsettled by inconsistencies
in national law on errors and mistake. The Expert Group would prefer that input
errors and mistakes be dealt with in a separate article in the convention.
The convention must clearly
indicate that the parties may by their agreement vary the convention's default
rule on mistake, i.e., the convention's rule on mistake should not be mandatory.
Although it is clear that the convention itself should generally not be mandatory,
the Expert Group finds it useful to point this out specifically with respect
to electronic mistakes, since some national legislation in this area is mandatory.
Appendix
-- Questionnaire and Responses
Questionnaire
ICC distributed
the following "questionnaire regarding electronic contracting practices"
to companies worldwide in September 2001:
Background
Disharmony between
different legal systems creates huge costs for anyone wanting to pursue trade
outside their own jurisdiction. In order to avoid the problem of determining
the applicable law to electronic contracts the United Nations Commission for
International Trade Law (UNCITRAL) is considering the development of legal rules
for electronic contracting. While businesses would remain free to agree on their
own contracting practices, the UNCITRAL project could result in the development
of basic default rules for electronic contracting which could be of fundamental
importance for cross-border electronic commerce.
ICC wants to ensure that
this important project reflects business realities, and is preparing a report
to be submitted to UNCITRAL in November giving an overview of existing electronic
contracting practices and analyzing which legal issues would be appropriate
for UNCITRAL to deal with. To this end, ICC is approaching companies to learn
more about their electronic contracting practices, and to solicit the views
of business as to what the proper scope of the UNCITRAL work should be. ICC
would very much appreciate if you would take a few minutes to consider the following
questions:
Your
own practice and experience
Does your company
have any experience with electronic contracting?
a) If yes:
i. have you been required
by suppliers/customers/partners to use electronic means for contractin
g?
ii. have you encountered any problems (legal or practical)?
b) If no, what are
the reasons for this (no opportunity/need, infrastructure or security problems,
legal uncertainty, etc.)?
Particular
examples
The scope of the
UNCITRAL project is as yet unclear, but ICC has identified a few issues that
create obstacles for electronic contracting and which may be candidates for
consideration by UNCITRAL. Keeping in mind that these are only examples, ICC
would be interested in your views on the following issues.
A.
Contract Formation
At present the rules on
formation of contract are different in different countries. The rules on what
types of message that are legally binding differ. For instance, a message
on a website could be an automatically binding 'offer' according to one national
law, but not according to another. This disharmony creates a significant problem
in the international setting, due to the difficulty of determining applicable
law and the lack of international uniformity concerning the binding nature
of messages.
1. Do you think
it is a problem that the extent to which you are bound by electronic messages
differs in different countries?
2. Would
it be helpful if the rules on formation of electronic contracts were to be
harmonized?
B.
Incorporation of terms in the contract
Another area of disharmony
is to what extent terms are binding when a contract is entered into online.
Take, for instance, the rules as to whether a reference through a hyperlink
to another website containing legal terms make those terms part of the contract.
Some jurisdictions require an active approval (a clicking on the link or in
an OK-box for example), whereas other jurisdictions do not impose such requirements.
3. Do
you think it is a problem that the law in relation to incorporation of terms
differs in different countries?
4. Would it be helpful if the rules on incorporation of terms in electronic
contracts were to be harmonized?
C.
Mistake/Error
Due to the speed and automation
that characterize the use of electronic communications, mistakes are easily
made (e.g., instead of ordering shares worth $ 1,000, you may find yourself
bound to order 1,000 shares), whether by the result of human error or due
to automated choices made by computers. There is currently uncertainty as
to how responsibility for mistakes should be divided, since the traditional
rule (which puts most of the burden on the mistaken party) may not be suitable
for the electronic environment. Different jurisdictions currently adopt different
positions with respect to mistakes in electronic communication.
5. Do you think
it is a problem that the law in relation to mistake differs in different countries?
6. Would it be helpful if the r
ules on mistake in electronic communication
were to be harmonized?
D.
Evidence
Even in the off-line paper
world, counterparties frequently find it difficult to identify the terms of
their contracts precisely: correspondence may go to and fro, it may or may
not mature into an integral "contractual document", or alternatively
there may be more than one "document" which looks "contractual"
because each of the counterparties use their own standard terms. The opportunities
for such uncertainty are multiplied in the on-line world, where legal certainty
depends not only on the applicable law of contract but also on the law of
evidence and on the admissibility of electronic messages as proof of contractual
intent.
8. Have you come
across any problems due to international disharmony within the area of law
of evidence regarding proving
a) that a contract
is concluded, or
b) the terms upon which you have contracted?
9. Would it be
helpful if the rules on evidence in relation to electronic transactions were
to be harmonized?
Future
regulation
10. Do you believe
that the issues A-D listed above are problems in practice?
11. Are there other issues that UNCITRAL should be addressing?
12. Would it be useful for business to have an internationally harmonized
regulatory framework for electronic contracting (similar to the Vienna Sales
Convention)?
13. If such a harmonized regulatory framework is developed, should
there be separate rules for electronic contracting or would it be preferable
to have the same rules apply irrespective of what medium is used (i.e., for
both online and offline contracting)?
14. What are the most urgent issues that you would like governments
and international organizations to address in electronic commerce in general,
and electronic contracting in particular?
Responses
We have received responses
so far from twelve companies representing a wide variety of business sectors
and geographic regions. The following is a summary of them, including quotations
(underlined) from the responses:
|
No.
|
Country
|
Summary
of Questions/Responses
|
|
1.
|
Czech
Republic-industrial company
|
1.
Does your company have any experience with electronic contracting? "Yes."
2.-9.: Company finds problems in all these areas and would welcome harmonisation
work in them.
12.: Would it be useful for business to have an internationally harmonized
regulatory framework for electronic contracting (similar to the Vienna Sales
Convention)? "It will be useful. The rules should be valid in all
countries."
13.: If such a harmonized regulatory framework is developed, should there
be separate rules for electronic contracting or would it be preferable to
have the same rules apply irrespective of what medium is used (i.e., for
both online and offline contracting)? "Only one regulatory framework
should be valid." |
|
2.
|
Denmark-industrial
company
|
1.
Does your company have any experience with electronic contracting? "We
have since the middle of the 1980s been promoting the use of electronic
contracting towards our (external) customers, as well as internally between
business units…Regarding the legal aspects, the greatest uncertainty
have been the issues concerning the question of invoicing across borders."
2.-9.: Regarding the examples of legal obstacles identified in the questionnaire,
the company says as follows: "The international disharmony in the
areas of contract formation, incorporation of terms in the contract, mistake/
error and evidence, have not yet been issues which have caused problems
in the relation towards our customers. However, it is an area, which deserves
more attention, due to the evolution and expected increased use of EDI or
electronic contracting, in the near future. The present situation with discrepancy
between the different laws in different countries is a latent risk, which
undermines commercial relations across borders and continents, causing companies
to use an excessive amount of time and money, in their attempt to foresee
their legal position. Harmonisation or creation of further default rules
would therefore be very welcome as a practical tool in relation to cross
border business."
10.-14: Regarding future work, the company says as follows: "In
our opinion it is a good idea to promote an internationally harmonised regulatory
framework for electronic contracting, if and to the extent it reflects business'
need for simple and transparent regulation regarding the division of rights
and obligations among the contracting parties. The development of such harmonised
regulatory framework, should preferably be based on rules which apply irrespectively
of what medium is used, i.e. it should apply for both online and offline
contracting, in order to secure the global spreading out and usage hereof." |
|
3.
|
Denmark-another
industrial company
|
1.
Have you been required by suppliers/customers/partners to use electronic
means for contracting? "Yes." Have you encounter
ed any
problems (legal or practical)? "Not yet."
2.-9.: Company finds problems in all these areas and would welcome harmonisation
work in them.
11. Are there other issues that UNCITRAL should be addressing? "E-business
in general, intellectual rights conflicts vs. domain rights."
12. Would it be useful for business to have an internationally harmonized
regulatory framework for electronic contracting (similar to the Vienna Sales
Convention)? "Yes."
13. If such a harmonized regulatory framework is developed, should there
be separate rules for electronic contracting or would it be preferable to
have the same rules apply irrespective of what medium is used (i.e., for
both online and offline contracting)? "The rules should be the same." |
|
4.
|
France-large
bank
|
Company
notes the importance of territorial identification: "A website may
be implemented in one country while the company it serves - whose goods
and services it sells - is in another country. The buyer needs to know where
he is buying so as to be sure which laws apply. In a similar way, the seller
may need to know where the buyer is buying from, on top of where the goods
are to be shipped." |
|
5.
|
Germany-large
mail order company
|
Company
sees little need for harmonisation work, since most of the questions have
already been solved by the EU E-Commerce Directive and national law. |
|
6.
|
Germany-another
large mail order company
|
1.
Does your company have experience with electronic contracting? "We
use electronic means with our customers because this necessity is required
by the mail-order market. As far as suppliers are concerned we decided -
after a test period - not to use electronic means because the technical
requirements for that were to high and the security of data transmission
was not guaranteed."
2. Do you think it is a problem that the extent to which you are bound by
electronic messages differs in different countries? "No, because
we and our subsidiaries operate in our individual domestic markets only".
3. Would it be helpful if the rules on formation of electronic contracts
were to be harmonized? "This would be helpful. However, since at
the time the EU enacted the directive of electronic commerce it was not
able to harmonise these rules, I doubt that this will happen in future."
4.-9.: Company finds problems in all these areas and would welcome harmonisation
work in them.
12. Would it be useful for business to have an inter
nationally harmonized
regulatory framework for electronic contracting (similar to the Vienna Sales
Convention)? "I don't think this would be useful. Similar to the
Vienna Sales Convention the framework would not be ius cogens. The more
powerful party of the contract would exclude those rules that he doesn't
want."
14. What are the most urgent issues that you would like governments and
international organizations to address in electronic commerce in general,
and electronic contracting in particular? "A real problem is the
question which law is applicable in cross-border business, e. g. competition
law, data protection law, trade law. But I doubt that this problem can be
solved in the near future." |
|
7.
|
Iceland-bank
consortium
|
1.
Does your company have experience with electronic contracting? Have you
encountered any problems? "The legal problems are lack of predictability
and trust due to complex IT-law issues (contract formation, non-repudiation,
archiving, validation, evidence) and the fact that there is no case law.
The use of electronic communications for important transactions is mostly
restricted to closed user groups, whose members agreed previously on the
technology used and the appended legal consequences."
2. Do you think it is a problem that the extent to which you are bound by
electronic messages differs in different countries? "Yes, I think
it is a general problem in international contract law. It is for example
a big issue for both consumers and suppliers to know if something is an
offer or an invitation to make an offer. There are valid reasons for both
but the parties have to know which one applies."
3. Would it be helpful if the rules on formation of electronic contracts
were to be harmonized? "It would be helpful for clarification, but
contract formation is a big legal issue for most countries and tradition
is a very strong factor there. It is also not helpful to have special rules
for electronic contract that vary from formation of contracts in the paper
world. Another thing is that all formal requirements for contract formation
can make simple things complex and should be avoided. Intention should be
the main issue."
4. Do you think it is a problem that the law in relation to incorporation
of terms differs in different countries? "Yes, I think it is a problem,
especially for consumers. In the Nordic countries for example, consumer
protection is very strong and incorporation by reference has to be done
in a very clear and informed way."
5. Would it be helpful if the rules on incorporation of terms in electronic
contracts were to be harmonized? "Yes, I think so, but again contract
law is a delicate national issue."
6. Do you think it is a problem that the law in relation to mistake differs
in different countries? "Yes."
7. Would it be helpful if the rules on mistake in electronic communication
were to be harmonized? "I think that the traditional rules should
be sufficient in almost all cases (intention, culpa, good faith)."
8. Have you come across any problems due to international disharmony within
the area of the law of evidence? "It has to be very clear when a
contract is conc
luded. The main issue has to be the intention to be bound
by the contract and not some formal requirements."
9. Would it be helpful if the rules on evidence in relation to electronic
transactions were to be harmonized? "I do not think that it is practically
doable to harmonize rules on evidence even though it would be helpful. It
is also my opinion that general rules should apply here."
10. Do you believe that the issues A-D listed above are problems in practice?
"Yes, I believe that the issues that are listed constitute problems
not only to electronic contracting but contracting in general. These issues
are not new but the ability to conclude contracts electronically makes them
more practical."
12. Would it be useful for business to have an internationally harmonized
regulatory framework for electronic contracting (similar to the Vienna Sales
Convention)? "Yes it would be useful."
13. If such a harmonized regulatory framework is developed, should there
be separate rules for electronic contracting or would it be preferable to
have the same rules apply irrespective of what medium is used (i.e., for
both online and offline contracting)? "It is very preferable to
have the same rules irrespective of the medium used." |
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8.
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Japan-multinational
|
1.
Have you been required by suppliers/customers/partners to use electronic
means for contracting? "Yes." Have you encountered any
problems (legal or practical)? "Not so far. There have been few
cases and little experience in electronic contracting."
2. Do you think it is a problem that the extent to which you are bound by
electronic messages differs in different countries? "That is definitely
a big problem which could hamper electronic commerce eventually."
3. Would it be helpful if the rules on formation of electronic contracts
were to be harmonized? "Yes, it would, however it would be more
important how harmonization was done."
4. Do you think it is a problem that the law in relation to incorporation
of terms differs in different countries? "It might be a problem.
But this issue would occur also in the case of non-electronic contracts.
In case of non-electronic contracts, the parties normally take steps in
the contract process to prevent it from happening."
5. Would it be helpful if the rules on incorporation of terms in electronic
contracts were to be harmonized? "It is hard to say Yes or No."
6. Do you think it is a problem that the law in relation to mistake differs
in different countries? "Yes, it is a big problem."
7. Would it be helpful if the rules on mistake in electronic communication
were to be harmonized? "It is hard to say Yes or No. If there is
an article to prevent this risk from happening in the contract, there would
not be such a need for international harmonization in this area. This is
supposed to be an issue which should be dealt with between the parties to
the contract."
8. Have you come across any problems due to international disharmony within
the area of law of evidence regarding proving that a contract is concluded,
or the terms upon which you have contracted? "No."
9. Woul
d it be helpful if the rules on evidence in relation to electronic
transactions were to be harmonized? "I do not know".
10. Do you believe that the issues A-D listed above are problems in practice?
"For some issues, Yes, but not for all the issues."
11. Are there other issues that UNCITRAL should be addressing? "No."
12. Would it be useful for business to have an internationally harmonized
regulatory framework for electronic contracting (similar to the Vienna Sales
Convention)? "As a guideline or framework, Yes. But if the convention
was adopted, it would be totally up to each individual nation whether or
not to ratify it. So, considerations of sovereignty would be important."
13. If such a harmonized regulatory framework is developed, should there
be separate rules for electronic contracting or would it be preferable to
have the same rules apply irrespective of what medium is used (i.e., for
both online and offline contracting)? "It is hard to say which is
better. We need to research more practical cases before making a decision
on this issue."
14. What are the most urgent issues that you would like governments and
international organizations to address in electronic commerce in general,
and electronic contracting in particular? "Certificate authority
liability and institutional and harmonized document formats to prevent problems
entailed by electronic signatures." |
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9.
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Sweden-multinational
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1.
Does your company have any experience with electronic contracting? "Yes.
The reason for not using e-contracting apart from EDI is not legal uncertainty.
It's rather that no e-sales contracts are ever entered into, since all commerce
is done via a password-protected e-commerce platform where you have a paper
contract to start with. All international contracts are entered into locally
by affiliates, which means no problems with disharmony of law. Cross-border
contracts are so large that they are handled face-to-face."
7. Would it be helpful if the rules on mistake in electronic communication
were to be harmonized? "The issue of mistake is a problem. Needs
to be solved on national level as well as globally." |
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10.
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Thailand-commercial
company
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1.
Does your company have experience with electronic contracting? "No,
we have no experience to use electronic contracting due to legal uncertainty
and have no opportunity to use it yet."
2.-9.: Company finds problems in all these areas and would welcome harmonisation
work in them.
12.: Would it be useful for business to have an internationally harmonized
regulatory framework for electronic contracting (similar to the Vienna Sales
Convention)? "Yes, it will be very helpful."
13.: If such a harmonized regulatory framework is developed, should there
be separate rules for electronic contracting or would it be pref
erable to
have the same rules apply irrespective of what medium is used (i.e., for
both online and offline contracting)? "We see that there are some
requirements that the rules for on-line electronic contracting and the rules
off-line electronic contracting are separated." |
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11.
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United
States-large bank
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1.
Have you encountered any problems (legal or practical)? "No, too
early in the game for potential issues to emerge."
2.-3.: Company finds problems in all these areas and would welcome harmonisation
work in them.
4. Do you think it is a problem that the law in relation to incorporation
of terms differs in different countries? "Yes, big problem. Primarily
on the context in which an electronic signature is used with the contract
(the essence of the electronic contract value proposition is tied to electronic
signatures). Example: does an electronic signature signify acknowledgement,
informal general agreement or absolute legal confirmation of content? A
global means for setting the context within language and cultural permutations
is needed."
5.-9.: Company finds problems in all these areas and would welcome harmonisation
work in them.
10.: Do you believe that the issues A-D listed above are problems in practice?
"Not at the moment, but they are problems in getting traction for
electronic contract/signatures generally. Practice will not commence until
some of the foundation issues are resolved."
12.: Would it be useful for business to have an internationally harmonized
regulatory framework for electronic contracting (similar to the Vienna Sales
Convention)? "Yes."
13. If such a harmonized regulatory framework is developed, should there
be separate rules for electronic contracting or would it be preferable to
have the same rules apply irrespective of what medium is used (i.e., for
both online and offline contracting)? "Actually, resolving issues
arising in the course of online contracting will likely also benefit latent
issues in the off line world. I suggest working towards good online rules
and then checking them for how well they will work with existing offline
practice."
14. What are the most urgent issues that you would like governments and
international organizations o address in electronic commerce in general,
and electronic contracting in particular? "1.) Certificate authority
liability. 2.) Structured document formats and syntax to resolve context
confusion in applying electronic signatures." |
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12.
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United
States-multinational
|
General
comments:
"We welcome both the UNCITRAL initiative considering the development
of legal rules for electronic contracting, and the ICC initiative to make
sure that such an important project reflects business realities and practices.
Before answering the questionnaire, we highlight a few key issues that are
worth considering:
--The divergence of national rules on electronic contracting may call for
harmonisation. We would recommend, however, that attention is also given
to the mutual recognition of national rules in those areas where the divergences
are not significant. In choosing the appropriate method of harmonisation,
it would further be useful to reflect upon the usefulness of codes of conduct.
--To the extent that new or modified rules are needed to address the unique
aspects of electronic transactions, such rules should be international because
of the inherently global nature of electronic commerce. International and
regional (i.e. Communication from the Commission to the Council and the
European Parliament on European Contract Law, 2001/C 255/01) efforts of
promoting increased certainty should be undertaken jointly, otherwise they
could leave questions unanswered to entities doing business both within
and outside a specific region.
--In any transaction, whether between two businesses, between a business
and a consumer, or between a business and a public entity, the validity
of forming contractual relationships electronically must be legally ensured.
In an increasingly global marketplace, all parties to an electronic transaction
must feel assured that the legal framework which governs traditional commercial
transactions is also applicable to contractual obligations acquired using
electronic means.
--Many jurisdictions have not yet adequately addressed questions such as
how to contract via an on-line network, what constitutes a signature in
the on-line environment, and whether and to what extent on-line contracts
are enforceable. This situation creates uncertainty and raises the spectre
of non compliance and breach of obligations."
1. Have you been required
by suppliers/customers/partners to use electronic means for contracting?
"Yes, mainly by customers." Have you encountered any
problems (legal or practical)? "From a general perspective, there
is an overall sense of legal uncertainty. More specifically, the most
common problems are related to multiple jurisdictions (including access
from sanctioned countries); personal data protection (effectiveness of
online consent, opt-in, etc.); and effectiveness of click/shrink wrap
method in connection with certain country specific provisions (i.e. express
acceptance of clauses in standard contracts under art. 1341 of the Italian
Civil Code)."
2. Do you think it is a problem that the extent to which you are bound
by electronic messages differs in different countries? "Yes."
3. Would it be helpful if the rules on formation of electronic contracts
were to be harmonized? "Definitely yes."
4. Do you think it is a problem that the law in relation to incorporation
of terms differs in different countries? "Yes."
5. Would it be helpful if the rules on incorporation of terms in electronic
contracts were to be harmonized? "Yes, very helpful."
6. Do you think it is a problem that the law in relation to mistake differs
in different countries? "We believe that there may be a need to
investigate to what extent the "type" of mistake is different
in an on-line compared to the off-line environment and, if so, whether
any technical or regulatory initiatives are needed in this regard."
7. Would it be helpful if the rules on mistake in electronic communication
were to be harmonized? "Yes."
8. Have you come across any problems due to
international disharmony within
the area of law of evidence regarding proving a) that a contract is concluded,
or b) the terms upon which you have contracted? "Yes, mainly b)."
9. Would it be helpful if the rules on evidence in relation to electronic
transactions were to be harmonized? "Definitely yes."
10. Do you believe that the issues A-D listed above are problems in practice?
"Yes."
12. Would it be useful for business to have an internationally harmonized
regulatory framework for electronic contracting (similar to the Vienna
Sales Convention)? "Yes, although due consideration should be
given to the fact that the application of the Vienna Convention is almost
always excluded from contracts."
13. If such a harmonized regulatory framework is developed, should there
be separate rules for electronic contracting or would it be preferable
to have the same rules apply irrespective of what medium is used (i.e.,
for both online and offline contracting)? "Electronic contracts
are not fundamentally different from paper based contracts. Nevertheless
e-commerce does not fully reproduce the contracting patterns used on contract
formation through traditional means. Therefore, even though a harmonisation
effort to eliminate legal obstacles to the use of modern means of communication
might not be primarily concerned with substantive law issues, some adaptation
of traditional contract law rules could be needed to accommodate the needs
of electronic commerce. To that extent, we believe that rules addressing
the specificity of the medium should be elaborated. Not to mention the
fact that consensus is more likely to be reached on electronic practices
due to their novelty and to the lack of a consolidated legal tradition
in such an area."
14. What are the most urgent issues that you would like governments and
international organizations to address in electronic commerce in general,
and electronic contracting in particular? "In general: a) it should
be clear what types of contract are to be governed; we believe that dealing
solely in the area of international sales of tangible goods would be too
limited, hence consideration should be given to any contract concluded
or evidenced by electronic means. b) Specifically concerning electronic
contracting: contract formation (i.e. offer and acceptance, expression
of consent, receipt and dispatch, storage and retrieval of contract terms,
automated computer systems, treatment of mistake); evidence; applicable
law; - dispute resolution/jurisdiction (also in B2B transactions)."
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