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5. Jurisdiction

Evidence Issues

National procedural laws have been or soon will be adapted to allow the presentation of electronic documents. Evidence of the existence of an electronic contract may be produced by a digitally signed acceptance, but also through significant actions of the acceptant, such as making an ordering payment or accepting delivery of the purchased products. Digitally signed acceptances and other significant actions of the acceptant give evidence of the existence of a contract and its main elements. This does not cover other aspects of the contract, such as the general terms, fulfilment of the duty to inform, product features, or the presentation by the e-commerce platform.

One method of guaranteeing the evidence that the e-commerce platform was established in a particular version would be to permit a third party (a notary or other trusted third party) to periodically check whether the e-commerce platform that is functioning is the one previously set up by the e-supplier.

Which Courts Have Jurisdiction?

Jurisdiction determines whether a court (or, typically for public law, a government agency) may hear and decide a case. The rules, for when a national court will have jurisdiction, are mainly a matter for national law to decide. The Brussels and Lugano Conventions are applicable when a case has a “trans-border nature”.

As a general principle, the Brussels Convention lays down that, in the absence of a specific rule, a court action must be brought before the court of the Member State where the defendant is domiciled. Nevertheless the parties to a contract (other than employment, insurance or consumer contract) are free to designate the court before which a case should be brought. Indeed, sellers are advised to express an exclusive jurisdiction on their web sites and in their contracts in order to avoid any confusion. Moreover, web site owners should make sure that their preferences regarding applicable law and choice of jurisdiction are in fact both valid and enforceable. For this it must be clear where the contract is formed. Both applicable law and choice of jurisdiction should be made clear to purchasers well before a contract is concluded, and on the web site itself.

Again, there are specific rules applicable to contracts for the supply of goods or services to a consumer provided that one of the following conditions are met:

·         the consumer has received in his home state a specific invitation addressed to him by advertising before the conclusion of the contract and he takes, in his home state, all the necessary steps to conclude the contract;

·         the supplier has received the consumer’s order in the country where the consumer is domiciled;

·         the consumer travelled from his country to another one where he gave his order to buy a good, provided that the consumer’s journey was arranged by the seller for the purpose of inducing the consumer to buy.

Parties to these particular contracts can contractually designate a competent court under certain well-defined conditions:

·         a clause must have been entered into after the dispute has arisen; or

·         the consumer is allowed to bring proceedings in courts other than those located in his country or the defendant’s; or

·         the courts of the same country where the consumer and the supplier are located are designated.

In the absence of a contractual choice, the rules vary according to who initiates the proceedings:

·         the consumer can either bring a court action before the courts of the country where the defendant is domiciled or before the court of the country of his own domicile;

·         the supplier of goods and services on the other hand can only bring proceedings against a consumer before the courts of the Member State where the consumer is domiciled.

The relevant law for jurisdiction, the Brussels Convention, is now proving to be insufficiently precise to comprehensively cover the e-commerce environment.

In December 2000 the Council of the European Union adopted a Regulation on “on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters” which will replace the Brussels and Lugano Conventions. The Regulation would take into account new forms of commerce such as electronic commerce. Once in force (March 1, 2002) it will provide rules for determining the competent court in cases of transnational disputes, including e-commerce transactions within the European Union.

The Regulation is applicable whenever the defendant is domiciled in a Member State

 Like the Brussels Convention it provides a special regulation for contractual claims involving consumers. It states that a consumer could decide to sue a supplier before the courts of his own Member State whenever the supplier “has directed his activities” towards the consumer’s Member State. This  means that sellers could face proceedings in any of the EU Member States if they do not implement a disclaimer on their website to exclude certain countries. But don’t panic! In any event, alternative dispute resolution (see next section) and other solutions are becoming available.

Full details of this complex issue can be found in the Regulation on jurisdiction, recognition and enforcement of judgements in civil and commercial matters.

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