Jurisdiction & Electronic Commerce: Reality and proposals

Autore:Maximiliano Orazi
Carica:Estudio Alleede & Brea, 1006 Ciudad de Buenos Aires, Argentina
Pagine:43-50
RIEPILOGO

1. Election of Competent Court by the Parties. 2. The Nature of the Obligation. 3. Domicile of the Defendant.

 
ESTRATTO GRATUITO

The growth and development of E-Commerce merits increasingly more legal attention, specifically within Private International Law. The aim is to provide effective solutions to procedural questions and legal issues concerning cases resulting from the clash between the real world of established regulations and the virtual world where non-regulation seems to be the norm. Of primary importance in the drafting of an international protocol to govern E-Commerce ("the New Law") will be the rules of jurisdiction in the New Law that will facilitate the initial determination of which courts will be competent to hear disputes arising thereunder.

A law that promotes the development of E-Commerce, which at the same time respects our already established laws for consumer protection, would ideally do the following:

* Establish broad principles of judicial competence granting jurisdiction for the Resolution of E-Commerce conflicts to all courts to which any of the Parties can show a connection.

* Respect the choice of competent jurisdiction agreed on by the parties, provided that this agreement is not illegal under the mandatory rules of the consumer's country of residence nor should it imply that the consumer's rights are waived.

* Accept the validity of an exclusion clause, within the Originator's offer, for specified groups or countries, provided that this is not discriminatory, included by the Originator because he/she is the one who best knows the territory or public to which the offer should be made, as well as the opportunities for fulfilling the contracts. However, in the absence of an express restriction, it should be understood that the Originator offers goods or services globally and by the same token he/she might come under the jurisdiction of the country of the acceptant, if the rules of private international law of said country apply.

* Establish, for every Originator, the obligation to identify him/herself, particularly in terms of geographical location and domicile, to facilitate the fixing of a domicile for the Parties. This also grants, for greater security of the Addressee, the residual possibility of initiating a legal procedure within the jurisdiction of the defendant.

These are the conclusions to which it is possible to arrive after analyzing the rules set forth currently by the Argentine law to establish jurisdiction over a certain conflict.

Rules for establishing jurisdiction in Argentine International Private Contract Law:

An Argentine court has adjudicating authority when it is a proper court under the rules of judicial competence. Rules of personal jurisdiction are implied in rules of judicial competence, but there are no separate rules defining judicial adjudicating authority over the person.

Excluding the solutions provided by the various International Treaties to which Argentina is a signatory, particularly the Vienna Coevention of 1980 on International Sale and Purchase of Goods, signed by many countries, the domestic legal regulations covering jurisdiction over a specific issue of a contractual nature establish that the following may be brought before a judge:

i) all contracts which must be fulfilled in the Republic, including when the debtor is not domiciled nor resident therein; and

ii) contracts in which the debtor is domiciled in or a resident of the Republic, and the Contract is to be fulfilled outside the country.

In the case of ii) Argentine law establishes a broad area of jurisdiction which also authorizes a claimant to claim before the judges of the country in which the contract is to be fulfilled.

To determine where the contract is to be fulfilled and, as a result, which country is recognized by Argentine law as having competency for claims related to the specific contract, reference must be made to Argentine law itself. According to Argentine law, place of fulfillment means;

1. The one stated by the parties signing the contract

2. The place indicated by the...

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