Copyright c 2001 Suffolk Transnational Law Review Suffolk Transnational Law Review Summer 2001 24 Suffolk Transnat l L Rev 249 LENGTH 12080 words LEAD ARTICLE A GUIDE TO E COMMERCE SOME LEGAL ISSUES POSED BY E COMMERCE FOR AMERICAN BUSINESSES ENGAGED IN DOMESTIC AND INTERNATIONAL TRANSACTIONS NAME Francesco G Mazzotta SUMMARY Although many states adopted legislation concerning digital signatures the UETA signifies the nation s first concerted effort to provide a uniform set of rules in the field of electronic commerce Moreover the Model Law is not intended to cover every aspect of the use of electronic commerce Only a few countries have created specific provisions to deal with limited areas of electronic commerce The different locations of parties involved in electronic commerce transactions complicate issues such as jurisdiction applicable law and recognition and enforcement of judgments in foreign jurisdictions seller buyer Internet servers service provider etc It also considers some implications of electronic commerce upon consumer contracts The Rome Convention on the Law Applicable to Contractual Obligations in Europe the American Framework for Global Electronic Commerce and the UCITA favor and respect the election of the applicable law by contracting parties These issues prevent electronic commerce from realizing its full potential The key intellectual property issues in this area relate to rules on ownership of intellectual rights access to digital content liability of Internet intermediaries trade marks and domain names database protection and enforcement of rights Additionally few countries are lacking measures to give a legal framework to electronic commerce Usually the term electronic commerce describes any electronic means used to conduct a commercial activity Consumer and government use of electronic commerce is beyond the scope of this document TEXT 249 I Introduction In February 2000 I sent my application seeking an internship with the U S Department of Commerce Western Pennsylvania District Export Council Pittsburgh Office A few weeks later I met with the director Mr Ted Arnn who posed a question to me that later became the core question of this article How should a company handle an international order received via e mail After extensive research on these types of electronic business transactions I discovered numerous sources to consider For the average business person however it would be almost impossible to consider every source The objective of this paper is to provide interested business people with a basic picture regarding e commerce This article concentrates on open network n1 transactions with an emphasis on international transactions Although this article focuses primarily on business to business transactions it also briefly addresses consumer protection rules Finally this article is phrased in a general way and it should not be relied on for specific tips or advice as to specific fields Throughout this paper one point should be remembered there are no firm legally binding international rules that apply to transactions done through electronic media In fact today buyers and sellers in different parts of the world have no legal framework for conducting their negotiations making contracts 250 arranging for finance transport or insurance on line because most of the rules that apply to international trade still presume the use of paper n2 However many national and international bodies are working on the legal aspects of this matter and as in any business transaction the domestic law of any affected country may become operative Therefore commercial laws of the involved countries must be considered In any event businesses involved in international transactions should get legal advice from American and other appropriate international practitioners as well as from specialists of the U S Department of Commerce II Overview of The Uniform Computer Information Transactions Act and The Uniform Electronic Transactions Act n3 The goal of this article is not to give detailed information about the Uniform Computer Information Transactions Act UCITA or the Uniform Electronic Transactions Act UETA These Model Laws however are important because they provide a comprehensive set of rules that could be applied to electronic transactions governed by United States law Even in an international transaction United States law may be applied if there is an international conflict of law Consequently businesses engaged in international transactions must have a basic knowledge of United States federal and state law The Uniform Commercial Code governs the of sale of goods in the United States however drafters never intended it to govern transactions in electronic information No contract law exists to provide clear consistent uniform rules for the intangible subject matter involved in computer information transactions 251 over the Internet Further no uniform law exists to provide substantive guidance for computer information transactions The absence of a uniform body of state law addressing the licensing of information products creates uncertainty and unpredictability which impairs the ability of businesses and consumers to do business and increases the cost of electronic transactions A UCITA The National Conference of Commissioners on Uniform Law prepared the UCITA at their annual conference held in Denver Colorado July 23 30 1999 Although the UCITA covers contracts involving computer technology such as software Internet access and support agreement it does not cover the sale or lease of computer related hardware such as books newspapers magazines movies television or records In addition UCITA does not apply to software embodied in goods other than a computer or a computer peripheral unless the main purpose of the transaction is to get the software When adopted the UCITA will make it possible for states to provide a neutral and predictable legal framework for transactions conducted in open networks as well as greater legal certainty for the millions of transactions that occur every day n4 An important feature of UCITA is that the parties to a contract are able to choose what law applies to their transactions Opting for UCITA however does not allow the parties to change certain requirements of the forum state as to antitrust advertising tax consumer protection product liability or similar laws In addition UCITA preserves the pre existing state of consumer protection statutes and
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