T H E U N I V E R S I T Y O F G E N E V A
ROUND TABLE ON ELECTRONIC COMMERCE
AND PRIVATE INTERNATIONAL LAW
The Hague Conference on Private International Law, an intergovernmental organisation whose objective is the unification of private international law norms (essentially conflict of laws, procedure and judicial co-operation), and the University of Geneva (Switzerland), recently organized a Round Table discussion on issues of jurisdiction and applicable law arising out of electronic commerce and Internet transactions.
This meeting took place on 2, 3 and 4 September 1999 in Geneva and was attended by one hundred experts representing the different sectors interested in electronic commerce: industry, operators, consumers, governmental experts and international organisations, both world-wide and regional. Twenty-six countries, as well as fourteen international governmental and non-governmental organisations were represented.
Seven commissions met simultaneously on the following subjects: contracts, torts, choice of court and choice of law clauses, service of process, applicable law to data protection, evidence and legalisation, standards of procedure for on-line dispute resolution.
During the first plenary session, Professor Henry H. Perritt Jr., Dean of Chicago-Kent College of Law, presented several highlights advocating the importance of the Internet for economic growth. He asserted that the Internet differed from other technologies in two majors respects: firstly, it is inherently global; secondly, it enormously reduces the economic barriers to entry into commerce. As a result, the number of electronic commerce providers, smaller enterprises and smaller-value-transactions appearing on the market increases dramatically. Those characteristics mean that traditional regulatory strategies to protect consumers and other important societal values, which depend to a large extent on the co-operation of large enterprises that serve as intermediaries in commerce, will be less effective because there will be so many more small enterprises doing business throughout the world. Professor Perritt concluded that the development of a new public law framework for private ordering and harmonisation was necessary in order to address the problems posed by e-commerce.
Professor Catherine Kessedjian, Deputy Secretary General of the Hague Conference on Private International Law, then introduced the work of the Round Table and focused her remarks on a number of issues. She stated that the Internet is the first medium to offer the possibility to execute and perform entirely on-line (i.e. without physical presence) a vast number of contracts for sale of immaterial goods and for the provision of services (notably financial and intellectual). Although the Internet was initially created so that each connected computer could be identified, the present trend towards anonymity may create an adverse environment for the development of electronic commerce and should be assessed in view of the interests at stake in that context. The Internet is also a medium which contributes to increase the scale of damages once a tort is committed over the net. The damage is instantly suffered on a number of markets in different parts of the globe and has wide-ranging effects. The prevention of these damages is almost impossible as the access providers do not want and probably are not in a position to play the role of regulator. Thus, the development of appropriate dispute resolution mechanisms become crucial as proper remedies would not be effective without them. It is also imperative that a clear framework is proposed to allow operators to know in advance what law will be applicable to their undertaking. Without such clear guidelines, development of electronic commerce will suffer. Although these are global problems which should be resolved by international co-operation via the competent organisations, States have already undertaken some isolated legislative initiatives. It is in view of these developments that the Permanent Bureau of the Hague Conference, under the mandate that it has to explore private international law questions of e-commerce, took the initiative to assess the pertinence of existing norms, notably for applicable law and jurisdiction, and convene the Round Table so that recommendations could be adopted towards any necessary adaptation. Professor Kessedjian also explained how these recommendations will be relevant for current and future work of the Hague Conference, particularly the current negotiations on a world-wide Convention on jurisdiction and the effects of judgments in civil and commercial matters.
Prior to the Round Table, Rapporteurs had been designated for each commission, i.e. for Commission I on contracts: Prof. Katharina Boele-Woelki (Utrecht) and Prof.. Bernd Stauder (Geneva); for Commission II on torts: Prof. Cristina González Beilfuss (Barcelona) and Dr. Peter Mankowski (Osnabruck); for Commission III on choice of forum and choice of law: Prof. Gabrielle Kaufmann-Kohler (Geneva), Mr. David Goddard (Wellington) and Prof. Margaret G. Stewart (Chicago-Kent); for Commission IV on the law applicable to data protection: Ms. Mary Shaw (Philadelphia), Mr. Ulf Bruehann (European Commission) and Mr. Spyros Tsovilis (Council of Europe); for Commission V on service abroad: Ms. Marie-Thérèse Caupain (Vice-President UIHJ), Mr. Luc Claes (UIHJ, Brussels) and Mr. Frederic A. Blum (National Association of Process Servers, Philadelphia); for Commission VI on taking of evidence abroad: Mr. Jan M. Hebly (Rotterdam); for Commission VII on on-line dispute resolution and standards of procedure: Prof. Helmut Rüssmann (Saarbrücken) and Prof. Ethan Katsh (Massachusetts).
Such rapporteurs were requested to prepare the substantive work of the commissions. A questionnaire, together with documentation, was made available to future participants and provided the framework for the discussions. These questionnaires and documents are available for consultation from the Geneva Round Table website at http://cuiwww.unige.ch/~billard/ipilec (user name ipilec; password unige).
Each commission adopted recommendations, which were presented at the second plenary meeting and discussed by all experts present. The full report of the Round Table will be available on the website of the Hague Conference at http://www.hcch.net/ by the end of November 1999.
At present the recommendations of the Round Table may be synthesized as follows:
* Professor Catherine Kessedjian, Deputy Secretary General
Hague Conference on Private International Law
2517 KT THE HAGUE
tel.: +31 (70) 363 3303
fax: +31 (70) 360 4867
e-mail: firstname.lastname@example.org - web: http://www.hcch.net/
* Professor Gabrielle Kaufmann-Kohler
Directrice du Département de droit international privé
Faculté de droit
Université de Genève
102, boulevard Carl-Vogt
1211 GENEVE 4
tél: +41 22 705 85 03
télécopie +41 22 705 84 67