4th INTERNATIONAL WEEK: Internet Communication Management Academic Courses, 7-12 April 2014, University of Economics Katowice (Poland)

1. 4th INTERNATIONAL WEEK:
Internet Communication Management
Academic Courses
7-12 April 2014, University of Economics
Katowice (Poland)
Gloria Esteban de la Rosa
Chair Professor of Private internacional Law
University of Jaén (Spain)

2. 4th INTERNATIONALWEEK
Internet Communication Management
Academic Courses
 First Part:
 Internet and
international electronic
contracts
 Second Part:
 Onlineinternational
contracts: General
termsand conditions

3. Internet and International
Electronic Contracts

4. International Contracts
 Consumer
Contracts
 B2C

5. 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

7. International Electronic
ContRacts (IEC)
 For speaking about IEC is necessary to make
reference to INTERNETINTERNET
 What is Internet?
 Virtual communication
environment or channel

8. 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

9. International Electronic ContRacts
(IEC)
 What is the primary function of Internet in the
international Trade?
 What do you think about this? (certainty,
simplicity…)

10. 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

11.  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

12. 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…

13. 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

14. 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

15. 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

16. Abusive, Bad Faith Registration…
 Problems arising in relation with the use of
DN in the international business
 WIPO (World Intellectual Property
Organisation)

17. WIPO
 Has developped legal principles under
national trade mark and unfair competition
laws

19. 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

20. 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

21. E-commerceand 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

23. 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

24. Nevertheless
 Internet has an inherent international
nature
 Controversially, the majority of legal rules is
bound to geographic areas

25. E-commerceLaw
 Regulatory inicitives of
the EU
 The E-Commerce
Directive (Directive
2000/31/CE)
 WTO work Program

26. E-Commerce Directive on legal aspects
of information society services
 His aimis 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

27. E-commerce Directive
 To try to balance the interests of
consumers and the interests of business
organisations

28. E-CommerceDirective
 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

29. 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

30. 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)

31. 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

32. 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

33. 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

34. Another problem:
 Responses are territorially localised, which
contrast with the intrinsic international
nature of internet and the electronic means

36. 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

38. International E-Contracts
 Identification of the
foreign element:
difficulties
 Uncertainty that
surrounds establishing
whether it is an internal
or external traffic
relationship

39. 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.

40. 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

41. 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

42. And, at thesametime:
 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

43. International E-Contracts
 Differences between Web-Page and Web-Site
 First Question:
 What legal system qualifies the content of a
WebSite?

44. WebPageand website
 The existing rules with regard to contract
formation equally apply to on-line contracting
 P. Blanchard: “Offerand Acceptance in
International Contract negotiation. A
comparative Study”, International Business
Law Journal, 2008, p. 3 …

45. 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…

46. ActiveWeb-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

47. 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

48. 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”

49. ACK: Acknowledgement
or Recognition
 Return message confirming that specific
destination communication effectively
reached (in the disciplines and
communication technologies)

50. NACK: Negative Acknowledgement
 It communicate errors that have been detected

51. 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.co