European Legal System and Online Business-To-Consumer Transactions (Term Paper Sample)

Does the European Legal System Set Clear Criteria to Determine Jurisdiction in Online Business-To-Consumer Transactions
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Does the European Legal System Set Clear Criteria to Determine Jurisdiction in Online Business-To-Consumer Transactions
IntroductionThe internet technological innovation has led to the emergence of the globalization business trend and spawned “e-commerce” industry that has long changed the business to consumer transactions of goods and services. Nearly all global companies have websites that are accessible to any internet subscriber in the world. It mentions the unique global character of the internet to develop, yet, it has prevented uniform approach to jurisdiction in the cases surrounding business-to-consumer transactions via the internet. Jurisdiction, according to Foss, is the power and authority of a court to hear and determine the judicial proceedings. However, the lack of uniform legal framework regarding the internet transactions between various businesses and consumers means that the business community faces the possibility of being subject to any legal judgments, including foreign nations where their websites can get accessed. Currently, three is the unpredictability of jurisdiction in the European legal system that makes it difficult for the companies operating online transactions to limit their legal liability and inhibits the growth of e-commerce. This paper focuses on the points taken by the European Union towards determining the online business jurisdiction and how there is a lack of uniformity that limits the growth of e-commerce.The merits of the online business transaction, for businesses, and consumers alike, have been previously oft-recognized. The EU public policy has been to encourage the development of e-commerce, by modernizing the legal infrastructure designed for the paper transaction, itinerant salesman, and brick-and-mortar storefronts. The EU laws recognize the perils related to online business and particularly, to consumers. The ability to advertise and sell services and products from a single site to an unlimited geographic market mentions one of the advantages of online commerce. Referencing from the consumer’s standpoint, transactions with business situated outside one’s jurisdiction raises concern. Particularly, debates have been raised that the consumer may not benefit from the protection when purchasing a product or service through more traditional means, within one’s jurisdiction. Besides, most businesses or suppliers strongly oppose the suggestion that they must become familiar and comply with the patchwork of regulatory schemes and fluctuating necessities of all the jurisdictions where their various consumers are situated. This creates legal uncertainty for both the businesses and the consumers, undermining the confidence in online business transactions as a mode of conducting business.The global internet connection makes it too tempting for the business community to market and sells outside their home jurisdictions. Notably, the European Union laws and principles relating to jurisdictions and choice of law in business or consumer standpoint are extremely complex. The EU jurisdiction is unclear the application of the law in case business is conducted between parties in different states, and which requires the courts to solve disputes arising between the parties. The framework in which the laws apply is more significant as the national laws differ significantly. This affects the terms of online business contracts or may provide that he contract is completely not enforceable. For example, in most EU jurisdictions, contracts are preferred in writing in order to be enforceable. However, online contracts fail the provisions of this requirement, and this is prevented by the electronic commerce directive, yet remains a risk outside the EU.The Directive on Electronic Commerce 2002The EU directive on electronic commerce in 2002 sought to eliminate the challenges to the application of electronic contracts. Ballon indicates that, particularly, the EU member states are indebted to ensure that their legal necessities pertinent to the contractual process does not create an obstacle for application of electronic contracts nor leads to contracts that are being deprived of validity and legal effectiveness on the account of their having been made by electronic approach. The directives set specific directions and expectations, including contracts that transfer or create rights of property, with the exception of rental rights. Also, the contracts requiring the indulgence of public authority, contracts overseen by the family law and certain other contracts are provided in the electronic commerce expectations. Primarily, the directive sets out information pieces that must be provided by the selling online. This includes whether the contracts will be stored or whether the client would have the ability to access the contracts. It also mentions the necessary steps to complete the contract, the languages offered for the conclusion of the contract, and the technical procedures for identifying and correcting input errors to the order placing. Furthermore, the contractual terms and conditions, according to Ballon, applicable must also be availed to the client using a mechanism allows the customer to store and produce them.The General Rule of Business Conducted within EU Mahony writes that where the consumer and the industry are both domicile in the EU member states, the following rules apply: Originally, the buyer and the seller are at liberty to choose which country’s law applies to the contract alongside the provisions of the goods and services. Also, the parties has the right to choose which country’s courts provides the jurisdiction to deal with any dispute, and finally, such agreement defendants can be sued in the country’s courts where there are domicile or where the contract is performed. The term “domicile” means the country where the individual has their habitual residence. Normally, this is evident in the case of companies and in the case of individuals. Overall, it means the country which it pursues economic activity or where it sells its products. However, if the company is active globally, it refers to where their central administration is situated.The concerns with the applications of Articles 13 and 5 (5) to consumer contracts raises special challenges with respect to internet transactions. With reference to the law on Brussels Convection, the European Court of Justice (UCJ) has taken the purposive and teleological mechanism to rule the interpretation, which characterizes its overall decision-making. The court holds that the concepts contracted in the Convection laws are to be understood, as a departure point, autonomously of the meaning they portray in the domestic law of one or more of the contracting states. It is established that they are also to get construed by reference, firstly, to the schemes and objectives of the Convection and secondly to the overall principles that stem from the corpus of the national legal systems. Contrastingly, the general approach of the rule interpretation, the European Court of Justice also tends to place important weight on the intentions of the drafters of the Brussels Convection as provided in various published reports by the rapporteurs of Convection drafting groups.[Foss, M, and LA Bygrave. "International Consumer Purchases Through the Internet: Jurisdictional Issues Pursuant to European Law." International Journal of Law and Information Technology. 8.2 (1999): 99.] [Kamel, N. "International E-Commerce." (2005). Print.] [Ibid., 13] [Ibid., 14] [C. Ballon,. E-commerce & Internet Law: Treatise with Forms. Eagan, Minn.: West, 2009. Continually updated resource] [Ibid., 227] [O’ Mahony, Charles. "The Legal Framework for Data and Consumer Protection in Europe." (2009).] [See Proposal for a Council Regulation (EC) on jurisdiction and enforcement of judgments in civil and commercial matters (COM (1999) 348 final, 14.07.1999)] [Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters (Official Journal 1988 L 319, p. 9)] [C. Rickett., and G. Thomas. ‘Telfer. International Perspectives on Consumers' Access to Justice. Cambridge: Cambridge University Press, 2003. .]