Mr. Smith and ABC Company concluded a
cross-border electronic transaction. Consequently, it is not automatically
clear, which courts the party can sue or defend their claim in, the law to be
applied and the remedies that are available since the parties reside in
different jurisdictions. This is in spite of the fact that there was apparently
a choice of jurisdiction, which was made by both parties, even though the
reality is that one of the parties had no real choice if he wished to proceed
with the contract. Reed contends that in an internet transaction it is pertinent
to inquire into where each element of the transaction took place while taking
into account that even where the applicable law and jurisdiction has been
agreed upon in contract, the rules may vary where one of the parties is a
consumer and where mandatory national laws need apply[1].
This paper shall now proceed to consider each of the factors to be taken into
account in this claim.
Holthofer explains that the question of
which country’s laws apply in interstate electronic commerce is related to the
question of where the contract via electronic means was concluded[2].
He adds that this can be further broken down into two questions: is the
contract concluded at the place of the sender or the recipient and where exactly
can a party said to be located.
In answer to the foregoing questions, a
contract was indeed concluded in England when Mr. Smith after having read the
terms and conditions of use of the website, indicated assent by clicking on the
‘I agree’ button. Rustad explains that a click-wrap agreement is one that
collects all the terms and conditions in a single dialogue box and then
requires the user to affirmatively accept before proceeding with the
transaction[3]. Mr.
Smith agreed to all the terms and conditions including the jurisdiction clause.
In the landmark case of Estasis
Salotti di Colzani e Gianmario Colzani v RUWA Polstereimaschinen GmbH [1976]
ECR the parties had apparently made a choice of jurisdiction by virtue
of signing a contract which contained the jurisdiction clause on the reverse
side[4].
In determining the matter, the court primarily observed that Article 17 of the
Brussels Regulation (as it then was) requires parties to have agreed in writing
and that there is clear evidence of the same before a jurisdictional clause can
be honoured[5]. Consequently,
the court held that while the requirement to have the clause set out in writing
is met by its inclusion in the contract, the legal provision is not fully satisfied
if a person has not really consented, there must have been express ref to
the clause.
Therefore, given that Mr. Smith had to
read the terms and conditions and accept before proceeding with the purchase of
the contract, it can be said that the requirement not only for an internet
contract to be concluded but for the jurisdictional clause to be upheld have
been met. This is because he had to read through the terms and conditions,
before clicking on ‘I agree’ and to this end; consent to the exclusive
jurisdiction clause can be inferred.
In determining the legal action that can
be taken, the main factor for consideration is the subject matter of the
dispute. The two main subject matter categories that arise in dealings between
private entities are contractual and non-contractual obligations. An electronic
contract like a traditional contract is formed where there is offer,
acceptance, and consideration, capacity to contract and for a lawful purpose[6].
In addition, for electronic contracts, in order to avoid issues relating to
their validity, parties must structure the transaction and keep supporting
documentation to verify that the basic formalities of a contract have been
complied with[7].
In this case, Mr. Smith visited a
website through which ABC company was offering its product for sale. Both
parties appear to have capacity as the website was supported by a company
seated in a known country. Mr. Smith agreed to the terms and conditions of sale
and made payment, so on the face of it, a contract was concluded between the
two parties.
It is for that reason that the subject
matter of the dispute can be surmised as breach of contract. The
characterization of the subject matter has a direct bearing on the laws that
will apply to the dispute. In the European Union (EU) there are separate
directives for obligations arising from contractual and non-contractual
obligations[8]. Article
I of the EC Directive on the law applicable to contractual obligations (Rome I)
provides that the Regulation shall apply to contractual obligations in civil
and commercial matters where the situation involves a conflict of laws such as
in this case[9].
The domicile of the parties also has a direct
bearing on their legal position specifically when it comes to the resolution of
dispute. In a cross-border transaction, the domiciles of the Defendant or the
Claimant are both capable of being the forum within which the parties resolve
their dispute[10]. While
the domicile of the parties is a connecting factor in any transaction, it is
especially pertinent in cross-border transactions where it is not easy to
identify the identity or legitimacy of the seller let alone where they are
operating from as the point of contact with the consumer is usually the
website.
Gillies contends that the decisive
feature of the internet is its ability to facilitate anonymity, so it is
important to establish the parties, their geographical location and where the
commercial activities were directed or have taken place[11].
Article 6 of Rome I underscores the importance of the residence or domicile of
parties to a consumer contract providing that a contract concluded between a
consumer and a professional who pursues his commercial activities in the
country where the consumer is habitually resident or directs such activity
towards that country, shall be governed by the law of the country where the
consumer resides[12].
Since this is a Union Directive, a
seller who wants to avoid the application of this law to him, would then have
to take steps to incorporate express contractual clauses providing otherwise.
Failure to make express provision would then assume a stronger legal position
for the consumer, such as Mr. Smith in this case as any disputes arising from
the contract would be adjudicated in a forum favourable to him.
EU law that has since been incorporated
into member states national laws contains specific provisions about the forum,
the law that would apply and the various exceptions arising out of consumer
contracts[13].
In the absence of express indications to the contrary, the legal provisions
would apply, setting out plainly the legal position of the parties in the event
of a dispute.
Wang explains that the conflicting
interests between buyers and sellers where the latter do not want to be sued
abroad for a variety of reasons -including the inconvenience of having to
travel to attend that forum and not being familiar with the applicable laws-
and the former seeking immediate solutions that are more easily obtained at home,
leads to a situation where either party can be subjected to foreign legal
jurisdiction[14]. ABC
Company took steps to avoid being subjected to a foreign legal jurisdiction by
incorporating and invoking the express clause in their contract. This would ideally
have placed them in s stronger legal position, were it not for subsequent laws
as explained below.
In as much as the legal action that a
party can pursue is dependent on the nature and subject matter of the dispute
and the domicile of the parties, and can be limited by the express provisions
set out by the parties to the contract, mandatory national laws and exceptions
to international legislation can work in favour of one party over the other[15].
In this context, EU consumer protection
Directives that have since been incorporated into member state laws contain
provisions that strengthen Mr. Smith’s claim in light of the fact that he is
the party to the contract that has weaker bargaining power. Article 18 of the
Recast Brussels Regulation EU 1215/2012 provides that while a consumer can
institute legal action either in the state in which he resides or where the
seller is domiciled, an action against the consumer can only be brought in the
country in which he is domiciled[16].
Resultantly, the consumer’s rights are a bit broader for their own protection[17].
In light of the consumer protection Directives, Mr. Smith’s legal position is
then strengthened in spite of the jurisdictional clause in favour of ABC
Company because the law expressly states that a consumer can institute and only
defend a claim in his country, in this case, England.
In ensuring greater protections for
consumers of electronic commerce, the EU developed the Consumer Rights
Directive 2011/83/EU that has since been implemented into UK law through the
Consumer Contracts Regulations[18].
This law stipulates certain information, terms and conditions that electronic
traders must adhere to in the course of conducting their activities. Failure to
adhere to the stipulated legal requirements attracts penalties under the law.
Chapter III of the Directive deals with
the information requirements of distance selling or off-premises contracts such
as the one between Mr. Smith and ABC Company. Article 6 (1) provides that the
trader is mandated to provide information on among other things its identity
and geographical location, details of payment, delivery, performance and complaint
handling policy and code of conduct[19].
This information must be provided before a consumer is considered bound by the
distance selling contract. Articles 8 subsequently provides that the trader
must make clearly and readily available in a durable medium to the consumer,
information about any delivery restrictions and right of withdrawal without
reason and cost[20].
The Directive and UK law stipulate that the minimum cancellation period is 14
days. Therefore, if Mr. Smith did not receive the camera by the agreed date and
it was within the cancellation window, then he can seek to withdraw from the
contract. The Consumer Contracts Regulations UK s.32 provides that the trader
must provide a form or other statement on its website through which the
consumer can exercise the right to withdraw[21].
In such case, the trader must reimburse the consumer in full without undue
delay and using the same mode the consumer used to make payment.
In view of the foregoing, a trader who
does not make the information available or takes it down -as ABC Company did- such
that the consumer cannot readily access it contravenes the provisions of the
law and is liable for the offences and penalties such as fines that are set out
therein. Article 7 of the EU Consumer Rights Directive provides that a trader
shall provide the stipulated information on a durable medium in a plain and
intelligible language[22].
Thus, in taking down its terms and conditions after the purchase, ABC Company
validated and strengthened Mr. Smith’s claim because they failed to maintain
the information in a durable medium, so that Mr. Smith can make a stronger case
that he was defrauded.
The last factor for consideration in the
determination of Mr. Smith’s legal position is the enforceability of whatever
decision the adjudicating body may make. As has already been explained
hereinabove, Mr. Smith can institute legal action either in England where he
resides or in Romania, but it would be more convenient for him to do it in the
former where he can take advantage of the law he is familiar with and consumer
protections provided therein. The Brussels Recast Regulation in Article 36
clarifies that a judgment given in a member state shall be recognized in other
member states without any special procedure being required[23].
All, Mr. Smith would have to produce according to Article 42 of the same
Regulation is a copy of the judgement, a certificate concerning it and a translation
where necessary.
Alternatively, if Mr. Smith, chose to
pursue alternative dispute resolution, which is the faster, cheaper and simpler
way to resolve the issue with ABC Company, he could do so as well. The
Directive on Consumer Alternative Dispute Resolution (ADR), Directive
2013/11/EU states in Article 2 that the Directive applies for out-of-court
resolution of contractual disputes arising out of a sales contract between a
consumer and trader both resident in the Union through a recognized ADR entity
with a view to facilitating an amicable solution[24].
Having set out the factors for
consideration in determining Mr. Smith’s legal position, this paper shall now
turn to examining -with reference to the legal framework- two key issues; the
court in which he will file the claim and the law to be applied in the
resolution of the dispute.
Gillies sets the tone for this
discussion stating that the legal protection of consumers through a choice of law
rule, particularly where consumers contract with foreign businesses through
websites, is a crucial mechanism that facilitates dispute resolution and
enhances judicial cooperation among states[25].
Solovay and Reed point out the fact that parties to electronic contracts can
only have confidence in the online system if there is a measure of
predictability in the recognition of their terms and resolution of any disputes
arising[26].
In order to establish that predictability, the EU developed the Brussels
Regulation on jurisdiction and the recognition and enforcement of judgement in
civil and commercial matters, now the Recast Brussels Regulation, which is
binding and directly applicable to all member states.
Preamble 15 states that the general
principle is that jurisdiction is based on the Defendant’s domicile unless the
subject matter of the dispute or party autonomy dictates a different connecting
factor[27].
Preamble 19 further clarifies that the autonomy of the parties to a contract –
presumably to choose their jurisdiction- must be respected. However, this
respect is not only limited in consumer contracts but also where exclusive
grounds of jurisdiction are laid out in the Regulation.
Articles 17 and 18 of the Recast
Brussels Regulation explicitly provides that in matters relating to a contract
concluded by a consumer with a person who pursues commercial activities in the
consumer’s domicile, the consumer may sue in the courts of his domicile or that
of the Defendant’s[28].
The parties herein had a clause granting
exclusive jurisdiction to the Romanian courts. However, Article 19 of the
Regulation provides that the foregoing provisions can only be departed from by
an agreement entered into after a dispute has arisen or where the consumer
would want to institute action in a third state’s courts[29].
This provision is one of exceptions to the general rule for jurisdiction that
are referred to in the preamble and has the effect of limiting the application
of the parties’ choice of jurisdiction given that this is a consumer contract.
Article 25 contains provisions on the
prorogation of jurisdiction stating that an agreement on the choice of courts
by the parties may stand and be exclusive provided it is in writing or
evidenced in writing in a form which accords with the normal practice between
the parties or normal trade usage[30].
ABC Company took down the terms and conditions of the contract after it was
concluded with Mr. Smith, so that there is no evidence whether in a durable
form or otherwise that an agreement on jurisdiction was made.
In the case of El Majdoub v Carsontheweb.Deutscheland GmbH Case C-322/14 the
Claimant was a dealer who had purchased a car from the Defendant’s website[31].
However, the Defendant subsequently cancelled the contract and failed to
deliver the car. The Defendant had included in its terms and conditions a
choice of court clause stating that any disputes arising were to be resolved in
Belgium where its parent company was[32].
The issues were distilled into one main question and that is whether the
click-wrap agreement qualified as a record in a durable form as required under
the provisions of the Regulation. The Court of Justice of the European Union
found that it did and so the exclusive jurisdiction clause had been validly
entered into.
Taking into account all the foregoing,
the matter will be heard in England. This is because Mr. Smith is domiciled there
and the law contains explicit stipulations on the choice of court within such a
contract. Secondly, although there is an exclusive jurisdiction clause, it does
not fall within the stated exceptions of having been entered into after the
dispute arose or where the consumer seeks a third court outside the parties’
domicile[33].
In addition, the jurisdiction clause was not contained in a durable medium in
as much as it had initially been in writing and Mr. Smith agreed to it via
click-wrap. Unlike in the foregoing case, the exclusive jurisdiction clause was
not valid and therefore cannot be relied on to mandate Romanian courts in this
case.
Article 3 (1) of Rome I states that a
contract shall be governed by the law chosen by the parties, where they have
clearly indicated their choice in the terms of the contract or the
circumstances of the case[34].
However, Article 3 (3) goes further to provide that where all other elements
relevant to the situation at the time of contract are located in a country
other than the one of the parties’ choice, then its laws shall apply without
prejudice to the extent that they cannot be derogated from.
Therefore, in this situation, it is not
stated that the parties made a choice of law application, just that they
selected the forum. Considering that all other elements at the time of contract
are located in England, including the fact that an offer had been made specifically
to UK consumers, then the law to be applied would be that of England.
Article 4 (a) of Rome I makes provisions
for where parties have not made a choice of law agreement in a sales contract[35].
It states that in such cases, the law that governs the contract is that where
the seller is habitually resident. However, given that ABC Company directed its
commercial activities to the UK, including as mentioned above making targeted
offers, the provisions of Article 6 on consumer contracts are triggered and
override the foregoing general provisions, so that in accordance with Article 6
(1) the law to be applied is that where the consumer is habitually resident[36].
Consumer protection provisions of the
international legal frameworks take precedence over general ones because consumers
in cross-border electronic contracts often deal in small, low-value and
individual transactions with sellers that are not readily identifiable or
accessible, so that in the event of breach of performance, the consumer will be
put out in trying to remedy the same[37].
Consequently, the EU opted to harmonize the law on this so that there is
greater predictability and or certainty in such transactions, more so for
consumers with lower bargaining power and virtually no opportunity to freely
make choice before entering into the contract.
Mr. Smith is a party to a cross-border
electronic contract, which he concluded with ABC Company when he agreed to
their terms and conditions. He ordered a camera which he never received after
which he made complaints that were not responded to. In ascertaining his legal
position, the factors for consideration are whether or not a valid contract
that could bind the parties was concluded. If it was, and it was in this case,
other factors for consideration in the determination of the dispute are the type
of claim and the location of the parties, both of which have a direct bearing
on the law to be applied. Since party autonomy is a foundational principle in
resolving contractual disputes, a determination must be made as to whether or
not the parties had made any agreement on the forum and law to be applied in
the event of dispute such as in this case. However, consumer protection takes
precedence over party autonomy and since Mr. Smith was a customer, presumably
in a weaker bargaining position, the legal provisions would apply to even the
scales. The last factor for considerations is whether the judgement would be
honoured in the other party’s member state and since both parties are domiciled
within the Union, the short answer is yes. In view of the foregoing, the EU
Directives and Regulations on the law applicable to contractual obligations,
consumer protection and jurisdiction, together with the relevant instruments in
England will apply to determine the choice of forum and law in this dispute.
Resultantly, the matter will be heard in English courts and applying English
law.
Legislation
EC
Regulation 593/2008 of the European Parliament and of the Council of 17 June
2008 on the law applicable to contractual obligations (Rome I)
EU Directive on Consumer
Alternative Dispute Resolution (ADR), Directive 2013/11/EU
EU
Regulation 1215/2012 of the European Parliament and of the Council of 12
Deecember 2012 on jurisdiction and the recognition and enforcement of
judgements in civil and commercial matters (Recast)
UK
CONSUMER CONTRACTS (Information, Cancellation and Additional Charges)
Regulations 2013.
Cases
Estasis Salotti di Colzani e
Gianmario Colzani v RUWA Polstereimaschinen GmbH [1976]
ECR
El Majdoub v
Carsontheweb.Deutscheland GmbH Case C-322/14
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