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29 Jun 2001, Sweden
Dear Dr. Ecommerce,
I'm writing an essay about the consumer's situation in electronic commerce, but I have some doubts. I was wondering if you could help me.
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If the consumer law is a mandatory law, does it mean that it always applies, even if another law is already chosen? What happens if both contractors are situated in Member States? What happens if the consumer -for example- is based in Japan?
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Do the INCOTERMs apply in an international B2C transaction?
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When a dispute arises from the non performance of an e-contract and both contractors are situated in Member States, what should be selected at first: the applicable law or jurisdictional authority? (I found this question really important since -as long as I know- the selection of this items could affect the final results of the dispute)
Thank you,
Jenny
Dear Jenny,
I put your question to E-Policy News Editor Elina Kaartinen, who replies:
"European Union has several mandatory consumer related dispositions in different electronic commerce related legislative acts. These dispositions are mandatory in consumer relations where the parties are located in Member States.
One has to remember that EU can not "import" its regulations to non EU Member States and relations. In the non-EU e-commerce relations the rules of international private law become relevant (e.g. Hague Convention on the Law Applicable to the International Sale of Goods and UN Convention on the International Sale of Goods). In B2B relations parties are in principle free to choose and agree on the laws governing their contract (this is called party autonomy).
More information about consumer related legislation at EU level can be found at:
http://europa.eu.int/ISPO/ecommerce/legal/legal.html
http://europa.eu.int/ISPO/ecommerce/legalguide.html
http://europa.eu.int/comm/consumers/policy/developments/e_comm/index_en.html
Concerning the application of INCOTERMs:
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In principle - there has to be a referral to INCOTERMS for them to apply (e.g. in the sales contract).
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The scope of the application is limited to matters relating to the rights and obligations of the parties to the contract of the sale with respect to the delivery of goods sold, but excluding "intangibles" like computer software.
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Their application has to be seen case by case in a consumer contract - meaning if there are any mandatory consumer regulations that overrule the general principles.
You can find more information on INCOTERMs at: http://www.iccwbo.org/index_incoterms.asp
Finally concerning the jurisdiction and applicable law. The main principle is that the court in which a case has been taken up has an obligation to check if it has the jurisdiction in the case. The applicable law is decided separately because the answer is not necessary identical. Thus in principle the jurisdiction is decided first. In civil matters between EU member states, the Brussels Convention (Brussels regulation starting from 1.3.2002) covers the questions related to jurisdiction and the Rome Convention covers the questions of applicable law (see http://europa.eu.int/ISPO/ecommerce/legal/favorite.html).
Lugano Convention covers questions related to jurisdiction in the area of international private law. http://www.curia.eu.int/common/recdoc/convention/en/c-textes/_lug-textes.htm
Good luck with your essay."
Good luck from me too,
Dr. Ecommerce