LUXEMBOURG--James A. Graham, #3|
European Private International Law and E-commerce
to the Draft Final ABA Report
Assistant lecturer at the Universitarian Center of Luxembourg, Luxembourg Law Laboratory, Public Research Center G. Lippmann, LuxembourgI will first briefly deal with some preliminary remarks about the general doctrine of European Private International Law (PIL), before taking in review the rules of jurisdiction (II) and the rules of conflict of law (III). In a last point, I will present an outline of some difficulties concerning arbitration clauses (IV).
I. Preliminary Remarks
The ABA Draft Report contains some fundamental misunderstandings about European PIL due to the difference of legal culture between the two continents. The first concerns the global approach to PIL; the second concerns the approach to the rules of conflicts.
Where the American doctrine distinguishes between prescriptive, adjudicative and enforcement jurisdiction, the European rules make a fundamental distinction between jurisdiction and applicable law. The concept of jurisdiction is taken as to designate which Court is competent in order to rule a case. Once the jurisdiction ascertained, the judge has to designate the applicable law. Where jurisdiction is mainly based on territorial principle, the designation of the applicable law is mostly based on the closest connection to a legal system. In other terms, whereas an American Court looks for which law is applicable in order to ascertain its jurisdiction, European Courts are reasoning in two steps. In a first stage, the European judge will verify the jurisdiction rules in order to ascertain its jurisdiction; then, he will look at his rules of conflict of law in order to designate the applicable law. The result is that in international situations there is not often a forum legis.
There is a misunderstanding when the ABA Draft Report points out that Europe is unwilling to enforce [contractual choice of law and forum clauses] unless they favor the consumer1 citing as example Article 7 of the Draft Hague Convention on Jurisdiction2. This does not correspond to the reality because there are two different problems. First of all, in regard to jurisdiction, the forum clause is not enforceable if it does not respect certain conditions in favorem of the consumer, as provided for example by the future Hague Convention. But in regard to electio iuri clauses, they are always enforceable under the Rome Convention ! There is just a protective mechanism that wants if certain conditions are fulfilled, the consumer can rely on the protective rules of the country where he has his residence3. But the lex electus remains applicable as lex contractus.
In conclusion, whereas the Americans are reasoning with one set of rules, the European must take in consideration two clearly distinct set of rules in regard to the problems of e-commerce. The first has to designate the jurisdiction of the Court (rules of conflict of jurisdiction) ; the second designates the applicable law (rules of conflict of law).
In respect to the rules of conflict of law, the ABA Draft Report does consider that the differences between this approach [the American one] and the European are more theoretical than real, however. In fact, the substantive law that gets applied under modern contacts or interests analysis in the United States most often is the same law that would get applied under lex loci delicti4.
The American approach is based on casuistry - in each case the judge analysis the facts in order to determine the applicable law. In Europe, there are abstract formulated rules which gives the judge the solution. Maybe it is true that at the end the result with both approaches is the same. However, for legal engineering, there is a fundamental difference as it is reasonably possible in Europe to foresee the applicable law at the moment of the conclusion of the contract for example. Even the modern principle of the closest connection, replacing the ancient lex loci executionis is an abstract formulated rule in the Rome Convention because it is in 9/10 of the cases the law of the country of the residence of the party who is to effect the performance which is characteristic of the contract. It is only in some exceptional cases that the judge must refute the presumption in order to undertake a contact analysis in order to determine the applicable law5.The immediate consequence for e-commerce and European Private International Law is that a method based on a sliding scale as adopted in the American case Zippo does not correspond to its need for an abstract pre-formulated rule. But a rule based on the criteria of targeting can be construed abstractly on a presumption. For example, one could retain a rule like : The applicable law is the law of the country which the Web site targeted. Is presumed as having targeted a country a Web page which is in a national language, using national currency, etc..
Two different set of rules, abstract pre-formulated rules of conflict, that are the postulates of the European PIL and which must be taken in consideration in regard to the new paradigm of e-commerce as I will see it now through the rules of jurisdiction (II) and the rules of conflict of law (III).
The European national legal systems have a dual regime in regard to jurisdiction. If the defendant is domiciled or if the obligation is performed in the EC, one has to refer to the Brussels Convention. In the other cases, the judge applies its national jurisdiction rules.
The basic principle of the Brussels Convention6 is that only the forum domicilii has jurisdiction to adjudicate. However, the Convention provides some limited options and exceptions.In respect to contracts, one has first of all to point out that the concept of contract is construed under the Brussels Convention independently of any particular national law and defined has an transaction between parties who have voluntarily undertaken an obligation towards the plaintiff7.
By art. 5.1 the plaintiff has an option between the jurisdiction of the domicile of the defendant and the jurisdiction of the place of performance of the relevant contractual obligation. If the action is based on a single obligation, one has to locate its place of performance by reference of the substantive law which governs the obligation under the choice of law rules of the country whose court is seized8. If the plaintiff makes in the same action several claims based on different obligations from the same contract, jurisdiction belongs to the court of the place of performance of the most important obligation9.
The difficulty here is obvious : how to locate the place of some specific obligations under a national law as they do not contain any provisions in this sense ? That's why the European Working Group proposes to modify art. 5.1 in adopting the place of delivery and the place of prestation as most modern codification do. The adoption of the place of performance of the contract instead of the relevant obligation would also help for cases involving e-commerce. How can under the actual regime a virtual transaction be localized like an online banking transaction ? Technically the obligation, resulting of a contract between a French client and a Swiss bank, of crediting a smart card is executed on a server which can be in the United States for example. The place of payment can neither be localized in case of use of e-money. However, either the place of prestation can be localized in the country where the bank is established or the place of delivery in the country where the client has his habitual residence.
The Brussels Convention foresees a certain number of protective jurisdiction rules as well. One of these is article 13 that allows the court of the domicile of the consumer to judge the litigation if :
- in the State of consumer's domicile the conclusion of the contract was preceded by a specific invitation addressed to him or by advertising; and
- the consumer took in that State the steps necessary for the conclusion of the contract.
It is true that many legal authors consider the first requirement as always fulfilled in the case of a accessible Website. However, such an interpretation is totally wrong. In fact, the Schlosser Report, quoting the Giuliano-Lagarde Report on the Rome Convention, put in exergue that by advertising one has to understand an advertising specially directed to a country. For example, a consumer responding to a publicity published in an American Journal cannot invoke the special rule of article 13. However, if the American Journal publishes a special German version, the consumer benefits from his forum actoris. Mutatis mutandis I do consider that an American site, in english, with prices in dollars, does not fulfill the requirement. On the opposite, an American company having a site with a French domain name and its pages in french can be considered as fulfilling the condition of article 13.
The real difficulty is once again the requirement of the conclusion in the consumer's State. Technically speaking, the contract is not concluded on the consumer's Pc; it's concluded on the seller's server. Consequently, the consumer can never benefit from his protection.
That's why, the Commission in its proposal of regulation has eliminated the second requirement and replaced the wording of the first one by directed to a member State. Unfortunately, during the Commission's public hearing in Brussels10, it were surprising how the new draft was misinterpreted by the representatives of industry who consider that the simple fact of having a Website fulfills the new requirement. I think that the proposed provision goes in the right direction. In fact, activities should be considered as directed to a Member State if the site is targeting in a special manner the local consumers (the site is registered in a European cctld11, the pages are in a national language, the prices are in euros, etc).
Article 17 of the Brussels Convention deals with prorogative jurisdiction. Unfortunately the Convention does not mention if there is a requirement of « internationality » in order to valid the electi fori agreement. Most of the legal writers sustain that the simple fact of choosing a foreign court in a « internal » contract is not sufficient to confer an international character to the agreement and thus has to be ruled by national civil procedure rules. Two cases of the ECJ can at least be cited in this sense12. For my part, I defend the idea that a virtual contract, concluded and/or executed on the Internet is always international per se, because Internet is an international space13. The principal difficulty of the above mentioned article regarding to Internet is its requirement of a writing. Nonetheless I think that it is possible to have a functional approach to it. In its ruling in the Porta Leasing case14, the Court did not insist on the medium but on the fact that article 17 is a rule that aims to insure that the consent of the parties has been expressed in a clear and precise way. Following this ruling one can conclude that a virtual clause signed digitally fulfills the requirement. One can go one step further in saying that a click-wrap clause is valid as well, even if the problem of the electronic proof will remain. By the way, the proposal of the Commission for the new text of the Brussels Convention joints this point of view as the new draft only retains as condition that the forum choice clause must be accessible on screen. The proposed draft by the Conference of the Hague of the new convention regarding jurisdiction goes in the same direction15.
For torts and non-contractual restitutionary obligations, the plaintiff may sue the defendant's domicile jurisdiction or in the court of the place where the harmful event had taken place (art.5.3). The concept of harmful event has been interpreted as either the place where the wrongful conduct has occurred and the place where the resulting injury happened16 without however including the place where the victims claims to have suffered financial damage when the initial damage was suffered in another Member State17. The Court of the place where the wrongful conduct has been occurred has jurisdiction to grant indemnities covering the whole prejudice beard in all the countries while the Court of the place where a the resulting injury happened only awards damages for the national prejudice.
In regard to enforcement of judgments, those rendered under the Brussels Convention are recognized and enforceable unless :
III. Applicable Law
In the European Union, the national rules of conflict of law have been replaced by a Community Uniform Law, the Rome Convention of 198018.First of all, it is to remark that the future directive on E-commerce19 does not influence the actual system. Some authors, and the ABA draft on electronic payments20, consider that there is a conflict between the lex originis provided by art. 3 of the Common Position and art. 5 of the Rome Convention which foresees the lex protectionis for consumer contracts. Such a view is wrong. The Common Position does not deal with PIL, as it is pointed out in art. 1.4. This means e.g. that a provider has to comply with the law of the territory where he is established in regard to its substantial obligations (art. 3 of the Common Position), but when he is concluding a consumer contract, the latter falls out of the scope of the future directive and the applicable law to the contract is designated according to the provisions of the Rome Convention.
Art. 1 of the Convention provides that its rules apply in any situation involving a conflict of law without however specifying the concept of conflict of law. The Guiliano-Lagarde Report says that one should understand as conflict of law any situation in which there are one or more elementi extranei to the internal social life of the country of the seized judge. In regard to e-commerce, which are those foreign elements ? Should one consider that a transaction concluded on a server in a foreign country involves a conflict of law ? Should one take in consideration the used language, the proposed currency, the cctld ? There is for the moment no response. For my part, as I mentioned it in regard to the Brussels Convention, I do consider the Internet as a new international space with the consequence that all transactions concluded in cyberspace are international contracts per se21.
Once the contract considered as an international contract, the Convention provides the principle of the freedom of the parties to choose the applicable law even if it has no connection with the contract under the reserve that it is a State law and not a soft-law like the new law merchant or the netiquette.
In the absence of an express choice, art. 3 of the Convention directs the court to consider next whether an implied choice of law by the parties can be ascertained. So it would be if for example there were no express choice in the particular contract, but a choice of law clause in the general terms. If there is no choice at all, art. 4.1 selects as the proper law the law of the country with which the contract is most closely connected. The closest connection is presumed in favor of the law of the country of the residence at the time of the conclusion of the contract of the party who is to effect the performance which is characteristic of the contract. However, art. 4.5 provides that this presumption is rebuttable if it appears from the circumstances as a whole that the contract is more closely connected with another country. This would be the case for example for swap operations where it is not always easy to determine which bank effects the characteristic performance.
However, the choice of law clause is limited in its application in regard to consumer contracts as the mandatory rules of the law of the consumer's habitual residence apply. In presence of an chosen lex contractus, the mandatory rules apply only there where they are more protective than the lex contractus, which nevertheless remains applicable to all the other parts of the contract. In absence of an express or implied choice of law, the consumer's habitual residence law becomes the proper law of the contract. As regards substantive characteristics, art. 5.1 requires that the contract must either have as its object the supply of goods or services to a person referred to as the consumer for a purpose which can be regarded as being outside his trade or profession, or must be for the provision of credit for that object, which excludes for example transferable securities and negotiable claims . As regards territorial provisions, it requires that at least one of the following conditions must be satisfied :
- the conclusion of the contract must have been preceded by a specific invitation addressed to the consumer in the country of his habitual residence or by advertising there, and he must have taken in that country all the steps necessary on his part for the conclusion of the contract; or
- the supplier or his agent must have received the consumer's order in the country of the consumer's habitual residence; or
- the contract must be for the sale of goods, and the consumer must have traveled from its country of his habitual residence to another country and there given his order, and his journey must have been arranged by the seller for the purpose of inducing the consumer to buy.
The first question in regard to e-commerce consists in asking if the consumer does receive or does require an offer when visiting a Web page. The answer differs from the employed technology. In the traditional pull system the consumer acts actively and goes retrieving the offer. In the push system, it is effectively the consumer which receives the offer. The same does apply to e-mails. Secondly, I do consider that the first requirement of the specific invitation addressed to the consumer's country is only fulfilled if a Web page does target nationally that country (e.g. using the national language or currency) which permits to identify the net-user in opposition to a neutral Web site like the one of a German bank for example which pages are in english and the used currency is the Euro. In that case, I do think that a French consumer living in Paris should not be able to invoke the French consumer mandatory rules. And even in presence of a targeting Web page, the question of the proof that the contract was concluded in France remains open. First of all, from a technical point of view, in case of a web-click contract, the agreement is concluded on the server and not in place where the consumer's computer is located. If the server is located in the country where the consumer has got its habitual residence, the probatory problem remains open. How should the consumer proves that he concluded the contract on his home PC and not with his notebook or his GSM while traveling in Italy ? In the same manner, I think that the seller, who has its server outside of the country where the consumer has its habitual residence, does not receive the order in the consumer's country as technically an electronical order is received on the server and not on the consumer's computer.
In business to business relations, the proper law of the contract is also limited by the mandatory rules as stated by art. 7 :
When applying under this Convention the law of a country, effect may be given to the mandatory rules of the law of another country with which the situation has a close connection, if and in so far as, under the law of the latter country, those rules must be applied whatever the law applicable to the contract. In considering whether to give effect to these mandatory rules, regard shall be had to their nature and purpose and to the consequences of their application or non-application.
For example in a contract between a French bank and an Australian client, ruled by Swiss law chosen in the electio iuri clause, one could imagine that the conventional fixed rate will be annulled by a mandatory rule of the Australian law, because it exceeds the legal admissible rate.
In absence of an European Uniform Law, the proper law of torts is designated by national rules of conflict. Even if each national PIL system differs, one can pretend that they mostly retain as principle the lex loci delicti, the law of the place where the harmful event occurred. The last one can be either the place where the wrongful conduct had taken place or the place of the resulting injury. However national case law interpreting the lex loci delicti differs from one country to another and no case has yet been ruled in regard to cyberspace.
The main question is that of the localization of the wrongful conduct. For some the locus delicti commissi is the place of uploading i.e. the place where the Web pages have been put online for defamation cases for example22. However, one should bear in mind that there is no necessary connection between the uploading place and the applicable law as the uploading can be done from any place in the world. For example the Web server can be hosted by a provider in New-York, and the Webmaster uploads some pages from Thailand where he stays on vacation. Should the law of Thailand be applied ? I do not think so. In opposition, one can consider as the locus delicti the place where the concerned person bears the prejudice, knowing that this place would be the place where is localized the Pc from where the person accessed to the harmful content23. Here too, the same objection plays than for the uploading place; what about if a French user accesses to the page while being on vacation in Italy. Should the Italian law be applicable ? No. That's why one should perhaps be looking either for the lex protectionis, which is the law of the country where the victim has its habitual residence or for the lex originis which is the law of the country where the responsible of the wrongful conduct has its habitual residence. Both systems have their advantages and disadvantages. Up to the courts to choose between them.
The validity of arbitration terms is usually determined under Article 2.1 of the New-York Convention24, which is applicable in more than one hundred countries. According to this provision, only written agreements are valid prima facie. However, as noted by an author, the requirement of writing is interpreted normally by the reference to the mode of imposition of the medium rather than the reference top the medium itself25. This seems to us as it would be possible to have virtual arbitration clauses at the condition that the clause is accessible and that the other party can in a clear and comprehensive manner be informed about the clause.
The New-York Convention requires as well that the arbitration clause must be signed which excludes click-wrap contracts. Nevertheless, it is possible to consider that the signature is not required if the arbitration clause is considered as a reference clause, i.e. the main contract contains a reference to another document which stands outside of it. French case law validates this kind of clauses, and a French author sustains the idea that even a pure verbal arbitration agreement should be valid26.
It has traditionally been considered that disputes related to consumer contracts were not arbitrable in order to protect the consumer against abusive or fraudulent practices by retailers and manufacturers with superior bargaining power. In this sense, the directive 93/13 considers as unfair a term which excludes or hinders the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, if the consumer has its domicile in a EU Member State. However, a new trend arises in favorem of the acceptance of arbitration clauses in consumer contracts.
In Hill v. Gateway 200027, an American Circuit Court ruled in a case, where consumers purchased a computer system by mail from Gateway 2000 and were the shipping carton contained a standard form contract with an arbitration clause, mentioning that the buyer would be deemed to have consented to the terms of the agreement unless the computer was returned within 30 days, that a contract need not to be read to be effective; people who accept take the risk that the unread terms may in retrospect prove unwelcome. Terms inside gateway's box stand or fall together. If they constitute the parties' contract because the Hills had an opportunity to return the computer after reading them, then all must be enforced.
The French Supreme Court also enforced an arbitration agreement in a consumer contract28, but the facts in casu were established before the directive 93/13 has been transposed in French law. This leads me to think that for the moment consumer contracts cannot include arbitration agreements, unless that a teleological interpretation prevails that wants that the directive accepts arbitration clauses in consumer contracts if they are not unfair. In other words, the arbitrator would have to examine in detail the contract and decide if the arbitration term is unfair or not in the context of the negotiation and the general content of the contract.
1P. 24 & p. 56.
5The reference work is that of Paul Lagarde, Le principe de proximité dans le droit international privé contemporain, HR, 1986.
7ECJ, Handte, 17/6/92, C 26/91.
8ECJ, Tessili, 6/10/76, 14/76.
9ECJ, Shenavai, 15/1/87, 266/85
10Hearing on « Electronic Commerce : Jurisdiction and Applicable Law »,Brussels, Charlemagne, 4-5 November 1999. Position papers submitted to the European Commission : http://europa.eu.int/comm/scic/conferences/991104/contributions.pdf
11Country Code Top Level Domain.
12Castelleti, 16/3/1999, Mainschiffahrtsgenossenschaft, 20/2/1997.
13Graham, Der virtueller Raum - sein völkerrechtlicher Status, JurPC, www.jurpc.de/aufsatz/19990035..htm. Adde : Hanotiau, The Transborder Flow of Data, Applicable Law and Settlement of Disputes, International Contracts for Sale of Information Services, ICC, 1997.175.
15Art. 4.2.b in its version of June 18th, 1999, ftp://www.hcch.net/doc/241e.rtf.
16ECJ, Shevill, 7/3/95, C-68/93.
17ECJ, Marinari, 19/9/95, C-364/93.
18Giuliano & Lagarde, Rapport concernant la Convention sur la loi applicable aux obligations contractuelles, OJEC, 1980, n° C 282.
19Common Position, 28/2/00, 98/0325 (COD).
22Mankowski, Das Internet im Internationalen Vertrags- und Deliktsrecht, RabelZ, 1999. 256, Montero, Les responsabilités à la diffusion d'informations illicites ou inexactes sur Internet, Internet face au droit, Namur, Story scientia, 1997. 121
23TGI Draguignan, 21/8/97, cited by the Report of the French State Council, Internet et les réseaux numériques, 1998.173 ; Napoli, 18/3/97, cited by Mankowski, op.cit., p. 270.
24Entered in force on Juin the 7th, 1959.
25Thomsen & Wheble, Trading with EDI - The legal issues, London, IBC Financial Books, p. 136.
26Civ1, 3/6/97, Prodexport, Rc, 1999.93, note Mayer.
27105 F3d 1147 (7th Cir. 1997).