Cyber Law: International litigation on Web

Nowadays we are encouraged to widely use the Internet in our professional and personal life, and hence, the increase in Internet dealings triggers the multiplication of litigation between on-line actors such as between business partners, or between Merchants and consumers, or following criminal offenses.

Upon occurrence of such dispute on the Web and since Web sites are accessible from any place in the world, we may wonder which courts shall have jurisdiction and which law shall rule the dispute? The consumer law, the Merchant law, or another law?

When an e-litigation rises between two nationals of same country for a breach or an offense related to their national territory, the issue is simple; their national law and courts shall be fully competent to rule such conflict.

The issue becomes more complicated when it comes to international Internet contracts as the answers differ depending on whether the litigation relates to B-to-B contracts or B-to-C contracts.

If you are party to an international B-to-B contract (which imply that the on-line partners are both professionals) dealing in on-line sale of goods, then the answer will be found in the International Vienna and ECC Rome conventions of 1980 which stipulate that the contractual provision as set out between the parties would prevail, i.e. the applicable law as chosen by the parties shall be implemented in case of litigation.

In the event the contract is silent is this regard, then the seller's residence law shall be applicable.

However, the on-line actors should be aware here that the Vienna convention protect only professionals and is not applicable when the international conflict relates to "service" contracts (and not sale contracts), and neither when the object of the contract consists of selling immaterial properties such as "software, patents…", whilst the Rome convention is applicable to all type of contracts whether signed by consumer or professionals.

In the absence of a specific international regulation ruling IT conflicts, the existing International treaties that were not supposed to cover litigation on the Web are today (along with national regulations when required) applicable to e-commerce conflicts and other Internet conflicts.

Among these treaties dealing with courts jurisdiction for international disputes, the Brussels convention of 1968, replaced by the new ECC regulation of 2000 (which has taken into consideration the e-commerce contracts) for jurisdiction and enforcement of foreign judgments in civil and commercial matters is particularly tackling this issue of determining the appropriate jurisdiction for resolving international disputes, and the subsequent enforcement of such decisions in the states member.

This convention gives preference to the parties' contractual decision as it provides that the dispute between merchants shall be referred, in compliance with the contractual chosen law, to the agreed competent jurisdictions, and if not contractually agreed upon (silence of the contract), then the courts of the place of delivery, or the defendant's residence courts shall have jurisdiction.

For B-to-C contracts, (contracts between merchants and consumers), it should be noted that most national legislations tend to protect the consumer interests and have enacted imperative regulations in this respect.

1. Nonetheless, with the motive to encourage international commercial exchange, the relevant EU and international treaties provide that the applicable law for resolving dispute would be the contractual law as designated by the parties, and in the event such law was not contractually designated, then the applicable law would be the consumer's residence law; which is indubitably a further security today for consumers especially those dealing on-line with professionals.

2. In the same way, the Brussels convention provides that the consumer in international contracts shall have the choice, in the event of dispute with a merchant, to sue the latter either before the courts of the consumer's residence country or before the courts of the seller's residence country.

As for the seller, he will only have one choice; suing the consumer before the consumer' residence courts.

For criminal offenses, the problem of determining the competent jurisdiction and applicable law for resolving a criminal offense dispute (such as hacking, posting offending contents on the Web, etc…) is more simple, as most national regulations apply their own national criminal law, and declare their own courts competent for ruling the IT dispute when the offence is committed on their territory.

Once judgments are rendered in international disputes, they need to be enforced in the country of the other party through the "exequatur" proceeding, which is internationally governed by the Brussels convention.

Nevertheless, enforcement of foreign judgments is till date a complicated process as various countries still did not join such an international treaty.

Accordingly, vigilant on-line actors, more particularly professional players are recommended when dealing with nationals or companies of countries which are not member of the relevant international enforcement treaties, to refer to the possible bilateral treaties for enforcement of foreign judgments and arbitral awards which could have been signed by their residence country with the partner's residence country.

For all the above reasons, and beyond settling disputes through Arbitration which faces the same enforcement problems as foreign judgments, some initiatives were taken by governmental bodies or private institutions in an attempt to discharge national courts by setting up alternative resolution bodies for IT disputes such as the "e-resolution" body (for domain name disputes), or the recent Extrajudicial European body for resolving consumer related disputes.

However, there is still much to be done in order to institute an efficient judicial or extrajudicial system for tackling the disputes over the Web being understood that if an on-line judicial system is instituted, it will have to be granted the same prerogatives as those of the traditional judicial system.