International jurisdiction over consumer contracts in e-europe

International and Comparative Law Quarterly

Volumn 52, Issue 3, 2003, Pages 665-696

  Øren, Joakim St ^a  

^a KING'S COLLEGE LONDON   (United Kingdom)

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EID: 85023144033     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/52.3.665     Document Type: Article

References (65)

1. ‘Council Regulation (EC) No 44/2001 of 22 Dec 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’.
2. However, Denmark is not bound by the Jurisdiction Regulation, meaning that the Brussels Convention still applies between Denmark and the other Member States of the EU, see recital 21 in the preamble of the Jurisdiction Regulation.
3. In short, an electronic agent can be described as a software program operating on behalf of a user in a digital environment. The use of electronic agents in e-commerce is growing rapidly, and in the future, electronic agents are believed to escalate from being a merely integrated part of a webshop like today, to an autonomous tool in e-commerce. This means that e-commerce as we know it, with its traditional web-shops, might, at least to a certain degree, be replaced with agent-based electronic marketplaces, where independent and autonomous electronic agents are able to perform every necessary transaction without the intervention of human beings. For a further introduction to the practical and legal issues of the application of electronic agents in e-commerce, see the special issue in 9/3 International Journal of Law and Information Technology (2001).
4. The Rome Convention on the Law Applicable to Contractual Obligations, Official Journal 1980, No L 266:1.
5. Some, however, claim that the Jurisdiction Regulation in reality will result in such a situation; see for instance some of the submissions made by business groups to the public hearing on ‘Electronic Commerce: Jurisdiction and Applicable Law’, arranged by the EC Commission in Brussels 4–5 Nov 1999. Some here claimed that because the Rome Convention is due to be revised, the consumer provisions concerning choice of law would be identical to Art 15 in the Jurisdiction Regulation, and that this would mean that e-commerce retailers will be subject to 15 different laws. However, the outcome of the revision of the Rome Convention is uncertain, and, as will be discussed in this paper, the interpretation of Art 15 in the Jurisdiction Regulation put forward by the business as a presupposition for this assertion is doubtful. An identical discussion of jurisdiction and choice of law is therefore not justifiable.
6. In many Civil Law countries, this is referred to as ‘public law’.
7. A teleological method is a designation for interpreting in accordance with the motivation and purpose of the legislation in question. A teleological interpretation of the law means that the interpretation is based on specific knowledge, or an assumed knowledge, regarding the purpose of the law, see Arnesen, Finn Introduksjon til rettskildelæren i EF, tredje utgave, IUSEF nr 2 Senter for Europa-rett, Universitetet i Oslo, Universitetsforlaget, Oslo 1995, 34 fl.
8. C-89/91, Shearson Lehmann Hutton Inc v TVB Treuhandgesellschaft fueur Vermøgensverwaltung und Beteiligungen mbH [1993] European Court Reports:0139, para 18.
9. See also Peter Kaye, Civil Jurisdiction and Enforcement of Foreign Judgments (Professional Books Limited, 1987) 823
10. Peter Stone, The Conflict of Laws (Longman Group Limited, 1995) 196. Art 5 of the Rome Convention is also based on the same motivation
11. see Dicey & Morris The Conflict of Laws, 13th edn (London: Sweet & Maxwell, 2000) 1285.
12. See also Jenard, ‘Report concerning the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters’ (Official Journal 1979 C 59, s 1–65 and s 66–70) 33
13. Schlosser ‘Report on the Convention on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice’ (Official Journal 1979 C 59, 71) 117
14. Giuliano and Lagarde ‘Report on the Convention on the law applicable to contractual obligations’ (Official Journal 1980 C 282, 1) 23, and C-150/77
15. Bertrand v Paul Otto KG [1978] European Court Reports:1431, para 21.
16. See amendment 3 with justification in the Report from Rapporteur Diana Wallis: ‘Report on the proposal for a Council regulation on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters’, Committee on Legal Affairs in the Internal Market, Rapporteur: Diana Wallis, COM (1999) 348 - C5–0169/1999 - 1999/0154 (CNS).
17. This was also emphasised by Rapporteur Diana Wallis, 35.
18. The Commission's initial proposal, ‘Proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’, presented by the Commission, Document 599PC0348, ch 4.2.
19. See Report from Rapporteur Diana Wallis, 13.
20. Jurisdiction based on a contract.
21. Jurisdiction based on tort, delict or quasi-delict.
22. Jurisdiction based on a dispute arising out of the operation of a branch, agency or other establishment.
23. Several surveys addressing these issues are publicly available, see for instance ‘The cost of legal obstacles to the disadvantage of Consumers in the Single Market’ a report for the European Commission published online: .
24. See also the Report from Rapporteur Diana Wallis, 30.
25. However, this may not be such a radical amendment as the wording may imply, as it was also assumed that Art 13.3 of the Brussels Convention was intended to cover nearly all activities of a commercial nature, see Ketilbjørn Hertz, Jurisdiction in Contract and Tort under the Brussels Convention (Jurist- og Økonomforbundets Forlag, 1998) 200.
26. M. Foss and LA Bygrave ‘International Consumer Purchases through the Internet: Jurisdictional Issues pursuant to European Law’, 8/2 International Journal of Law and Information Technology (2000) 124–125.
27. International Journal of Law and Information Technology.
28. International Journal of Law and Information Technology.
29. For instance if this denotes the factual or legal steps, see here Foss and Bygrave, 124 with further references in n 76.
30. Rapporteur Diana Wallis, 18.
31. Foss and Bygrave, 137. However, in order for the consumer in this example to be entitled to sue in a German court, the website in question must direct its activities to Germany. It seems here as though the authors are of the opinion that a consumer contract entered into by electronic means in itself is sufficient for the application of Art 15, an interpretation that the further discussion will prove is doubtful.
32. However, this must not be understood as a reference to the assessment made when determining the general personal jurisdiction in US courts, even though some of the relevant factors may be the same. See for instance the list at p. 32 in Spang-Hansen, Henrik Cyberspace Jurisdiction in the U.S.-The International Dimension of Due Process, Complex 5/01, Institutt for Rettsinformatikk, Oslo, 2001, referring to the Utah Court of Appeals in the case Buddensick v Stateline Hotel, Inc, 972 P.2d 928 (1998).
33. See the Report from Rapporteur Diana Wallis, 35.
34. See amendment 23 in the Report from Rapporteur Diana Wallis.
35. See Amendment 36 from the Parliament in Proposal for a Council regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’, Document number A5–0253/2000 COM (1999) 348-C5–0169/1999–1999/0154 (CNS).
36. Amendment 37 in the Proposal from the Parliament.
37. See the Commission's initial proposal.
38. Rapporteur Diana Wallis, 35.
39. See for instance Stuart Dutson, ‘Transnational E-Commerce’, (2000) 16 Computer Law & Security Report, 107.
40. Commission's amended proposal, 5–6.
41. Zippo Manufacturing Co v Zippo Dot Com, Inc, 952 F Supp, 1119 (W.D. Pa. 1997), at 1124.
42. A more thorough discussion of the Zippo case will not be given here.
43. See for instance also Spang-Hansen and McWhinney, Christopher, Wooden, Sean, McKown, Jeremy, Ryan, John and Green, Joseph ‘The “Sliding Scale” of Personal Jurisdiction Via the Internet’, published online: .
44. Foss and Bygrave, 119.
45. See Foss and Bygrave, 114–17, where the authors conclude that webpages containing promotional information may qualify as advertising pursuant to Art 13 (1)(3)(a) in the Brussels Convention.
46. Also in the same direction, Cheshire and North's Private International Law, 13th edn (London: Butterworths, 1999), 1288.
47. See Giuliano and Lagarde 23–4, where for instance it is statements as ‘where the trader has taken steps to market his goods or services in the country where the consumer resides’, and ‘special advertisement intended for the country of the purchaser’.
48. Foss and Bygrave, 118.
49. Commission's amended proposal, 5.
50. See the comments to Art 15 in the Commission's initial proposal.
51. See also Foss and Bygrave, 122.
52. See Hertz, 205, concerning advertising in media received across the border in a neighbouring State.
53. See also Foss and Bygrave, 122.
54. See Stone, Peter, ‘Internet Consumer Contracts and European Private International Law’ (2000) 9 Information & Communication Technology Law.
55. Also Hertz, 205–6 and Nielsen, Peter Arnt International privat- og procesret, Jurist- og Økonomforbundets Forlag, København 1997, 518 seem to take the same line, although the latter pertains to Art 5 (2) of the Rome Convention.
56. See amendment 23 in the Report from Rapporteur Diana Wallis.
57. See amendment 37 in the Proposal from the Parliament.
58. Especially since this seems to be the natural counterbalance of the expression ‘directs such activities’.
59. The importance of this has also been addressed in US case law, see for instance Euromarket Designs, Inc v Crate & Barrel Ltd, 96 F Supp 2d 824 (NDIll 2000), also referred to in Spang-Hansen 359–60.
60. See also Norwegian Research Centre for Computers and Law, ‘Legal technology - interle-gal issues’, published online: .
61. The collection of such personal information will be regulated by Directive 95/46/EC of the European Parliament and of the Council of 24 Oct 1995 on the protection of individuals with regard to the processing of personal data and of the free movement of such data, OJ L 281, 23/11/1995, 31, but this problem will not be discussed in this paper.
62. Hertz, 95, Stein Rognlien, Luganokonvensjonen, Kommentarutgave, Internasjonal domsmyndighet i sivile saker, Juridisk Forlag AS, Oslo 1993, 174–5, and Foss and Bygrave 106 with further references.
63. See also Hertz, 206, Foss and Bygrave, 106, and Peter Stone, ‘Internet Consumer Contracts and European Private International Law’ (2000) 9 Information & Communication Technology Law.
64. Irrespective of the different forms of ring-fence attempts, a common question is whether the application of such mechanisms is in conflict with the principle of non-discrimination embodied in the Treaty of Rome. For further reading, see Foss and Bygrave in n 65 on 121, where it is further indicated that this could also be problematic in relation to general EC competition law.
65. See also the comments to Art 15 in the Commission's initial proposal.