Topical Messages from Cyberspace
Uniform Commercial Law Information Colloquium, June 11th 1998,
United Nations Headquarters
Research Assistant, School of Law
University of Kiel
Electronic commerce is expected to have a US $200 billion volume by the year 2000. This volume, and the special characteristics of the Internet as the basis of electronic commerce makes it necessary to think about the adequacy of established legal concepts for international trade.
The first session of the Uniform Commercial Law Colloquium, which took place on June 11th, 1998 in the United Nations Headquarters, New York, was devoted to this topic. The colloquium was organised by UNCITRAL and attended by approx. 200 lawyers and academics from all over the world. Five distinguished experts presented 'Topical messages from Cyberspace'.
Renaud Sorieul, Senior Legal Officer of UNCITRAL, presented the 'UNCITRAL Model Law on Electronic Commerce'. He explained why Electronic Commerce required an international legal framework and how the Model Law could serve to create such a harmonised legal framework. There is also a need to adapt traditional legal concepts, which require paper-based documents for any legal effect. The Model Law does not attempt to define a computer-based equivalent of a paper-document. It analyses the functions of paper-based form requirements to provide criteria for granting legal recognition to electronic date which meets these requirements.
Prof. Raymond Nimmer discussed problems of contracting in cyberspace. As electronic commerce changes the basic way of contracting due to its speed, its diversity and global nature, new legal concepts are necessary. The main goal for contracting and trade must be legal certainty, which will not be achieved without harmonised standards. Among the issues which will have to be dealt with are:
- Contracting: How is a contract concluded? In the global environment of the WWW, standard terms nearly always occur.
- Performance : how and when is a contract, e.g. about the delivery of data, to be performed?
- Consumer Protection: what are the basic principles of fairness and protection? Which law should be applied?
- Electronic Risks: What are the legal consequences of electronic viruses or errors in software?
Gabriele Kaufmann-Kohler (Attorney and Professor, Geneva), spoke about 'Issues of Jurisdiction and Conflict of Laws in Cyberspace'. Although territoriality seems to be irrelevant in Cyberspace, the issue re-arises in case of a dispute: Which court should have jurisdiction ? She argued that the governing principle should be fairness: while the plaintiff had a right to access to Court, the defendant should not be unreasonably burdened. In practice, however, this principle might be difficult to apply. Establishing jurisdiction at the seat of plaintiff or defendant might be unfair for the other party. It would also be difficult to rely on the criterion of performance of contract, as a contract concluded in Cyberspace had no typical place of performance. She concluded that a virtual justice system consisting of 'Electronic courts', might resolve these problems.
Michael Schneider, Attorney in Geneva, went further into the problem of 'Dispute Settlement in Cyperspace'. He differentiated between enforcement disputes, which could be dealt with by national court systems, and contractual disputes. Only disputes of the latter kind required an international solution. Different methods could be thought of: arbitration via the Internet or centralised global courts. However, establishing such dispute settlement systems would not be easy. The last expert was George Thompson , Deputy Minister of Justice of Canada. He spoke about 'Possible future work of UNCITRAL'.
Ten minutes had been reserved for discussion of the topics, and a lively debate arose, concentrating on dispute settlement. While the idea of special courts for electronic commerce was welcomed, the establishment of such courts was seen by some participants as very difficult, proposing instead a uniform law dealing with the problem of jurisdiction. Other participants focused on the suggestion of arbitration via the Internet and questioned the enforceability of such awards.
The mood during the colloquium was good and the topics presented were very interesting. Unfortunately, each of them had only 10 minutes to present their thoughts - hardly enough. It was a great day at the United Nations, wonderful weather in New York and nobody I met regretted to have come to NY. I have been told that UNCITRAL plans to publish a summary of the presentations in the near future.
This is a Conference Report published on 30 October 1998.
Citation: Happ R, 'Topical Messages from Cyberspace', Conference Report, 1998 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/98-3/happ.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1998_3/happ/>