Legal issues in grid and cloud computing

Grid and Cloud Computing: A Business Perspective on Technology and Applications

Volumn , Issue , 2010, Pages 97-118

  Parrilli, Davide M ^a  

^a UNIVERSITY OF LEUVEN   (Belgium)

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EID: 84885826007     PISSN: None     EISSN: None     Source Type: Book    
DOI: 10.1007/978-3-642-05193-7_7     Document Type: Chapter

References (30)

1. The literature pointed out, as regards civil procedure (but the statement is true also as regards other legal issues), that "because the consumer is the weaker party, who often pays in advance for the transaction to take place and cannot influence the unilateral terms of contract that are offered, the balance in relation to jurisdiction leans towards the consumer." (Storskrubb 2008)
2. "The delivery of a car, the painting of a house, or a promise to deliver crops may be consideration for a promise of future payment." (Cooter and Ulen 2004)
3. 1980 Rome Convention on the law applicable to contractual obligations (consolidated version) [OJ C 27, 26/01/1998, p. 34-46]. For contracts concluded after 17 December 2009, Regulation (EC) 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) [OJ L 177, 4/7/2008, p. 6-16] will apply. Art. 11(2) states that "A contract concluded between persons who, or whose agents, are in different countries at the time of its conclusion is formally valid if it satisfies the formal requirements of the law which governs it in substance under this Regulation, or of the law of either of the countries where either of the parties or their agent is present at the time of conclusion, or of the law of the country where either of the parties had his habitual residence at that time." With this regard, Art. 19(1) specifies that "For the purposes of this Regulation, the habitual residence of companies and other bodies, corporate or unincorporated, shall be the place of central administration."
4. See, in particular, Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures [OJ L 13, 19/1/2000, p. 12-20].
5. This provision then points out that "The choice must be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or a part only of the contract." Paragraph 2 then specifies that "The parties may at any time agree to subject the contract to a law other than that which previously governed it, whether as a result of an earlier choice under this Article or of other provisions of this Convention. Any variation by the parties of the law to be applied made after the conclusion of the contract shall not prejudice its formal validity or adversely affect the rights of third parties."
6. Furthermore, "Nevertheless, a separable part of the contract which has a closer connection with another country may be by way of exception be governed by the law of that other country."
7. Art. 10(2) then points out that "In relation to the manner of performance and the steps to be taken in the event of defective performance regard shall be had to the law of the country in which performance takes place."
8. For the notion of 'habitual residence' pursuant to Art. 19(1) of the Regulation, please see supra. It is interesting to highlight here that paragraph 3 of Art. 19 states that "For the purposes of determining the habitual residence, the relevant point in time shall be the time of the conclusion of the contract."
9. Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [OJ L 12, 16/1/2001, p. 1-23].
10. Art. 60(2) sets a special rule for British and Irish companies: "For the purposes of the United Kingdom and Ireland 'statutory seat' means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place."
11. Art. 5(1)(a).
12. "Whilst it is to be applauded that the European Union sought to distinguish between the place of performance of goods and services, what definition will be given for the place of performance of digital goods or services purchased on-line has yet to be tested."
13. According to Article 5(1)(b) of the Brussels I Regulation, the place of performance should be deemed to be the place of delivery. Since it is very difficult to ascertain the place of performance with digitalized goods involving online delivery, in my opinion, the recipient's place of business should be considered as a connecting factor."
14. It has been pointed out in the literature that "there is still a latent complexity and a necessity for citizens or small enterprises, as either claimants or defendants, to have access to intricate legal analysis if they are to be fully aware if their rights and the potential business risks and transactions costs." (Storskrubb 2008)
15. It has been pointed out in the literature that "a well-drafted contract, which has factual links with more than one country, will contain a choice of jurisdiction or court clause. This is often referred to as an "exclusive" clause, providing that all disputes between the parties arising out of the contract must be referred to a named court or the courts of a named country." (Wang 2008).
16. In this case the national rules of civil procedure will apply to determine which judge will be in concreto competent.
17. The choice-of-court can be a clause in the SLA (or other contract) or a standalone agreement. The requisite of the written form apply to both cases.
18. Unless the following point (c) is applicable: "in international trade and commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned." The agreement made by clicking on an 'I agree' button in a webpage seems to be the case in point, provided that it is common practice to conclude contracts in this way on the Internet.
19. "This provision covers the agreement on a choice-of-court clause by exchanging e-mails. E-mails provide a durable record because they are saved either in the mailbox or on the hard disk and because they can be printed out on paper. An electronic signature according to the rules of the Signature Directive is not required." (Leible 2006)
20. "In America, each side usually pays his own legal costs. In Europe (and much of the rest of the world), the loser usually pays most of the winner's legal costs." (Cooter and Ulen 2004)
21. The SLA between SaaSforyou and the clients, in fact, can state that the former will not be liable for any damages suffered by the customer, at least in case the failure to provide the service is due to Grid/Cloud outages.
22. Namely Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Data Protection Directive) [OJ L 281, 23/11/1995, p. 31-50] and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) [OJ L 201, 31/7/2002, p. 37-47].
23. The reader shall be aware that as soon as a company/person has or manages data of contact persons within a company, then data protection legislation becomes applicable.
24. See Art. 2(d) and (e) of the Data Protection Directive.
25. Therefore, the controller is the person who bears the responsibility to implement the data protection principles and to comply with the obligations they set forth. It is thus important to define clearly who is considered as controller of the data processing. The concept is not always clear and should be distinguished from the processor. Both concepts have been introduced by the 95/46/EC Directive. The controller is the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data. The processor is the natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller. Processors are usually sub-contractors who perform specific tasks on basis of the instructions given by the controller. They are compelled to follow the instruction provided and to ensure the security of the personal data they processed. The actual ability to decide upon the purpose and means of the processing will be the core criteria to distinguish controllers from processors. This analysis should be carried out on a case-bycase basis.
26. Art. 4 of the Data Protection Directive states basically that the place of establishment of the data controller determines the national law applicable to the processing of the data.
27. In other words: any transfer of personal data between parties involves the signing of a contract regulating privacy obligations of the parties. This includes onward transfers to third parties that should always be notified to counterparts. This point is pivotal in so far as the controller may be subject to an obligation of notification of such transfer to the national data protection authority.
28. See http://ec.europa.eu/justice-home/fsj/privacy/modelcontracts/index-en. htm (retrieved 27/2/2009).
29. See OECD, Model Convention with Respect to Taxes on Income and on Capital [as they read on 28 January 2003].
30. See OECD, Commentary to the Model Tax Convention on Income and on Capital.