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UNCW BLA 361 - Suffolk Transnational Law Review

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Copyright (c) 2001 Suffolk Transnational Law ReviewSuffolk Transnational Law ReviewSummer, 200124 Suffolk Transnat'l L. Rev. 249LENGTH: 12080 wordsLEAD ARTICLE: A GUIDE TO E-COMMERCE: SOME LEGAL ISSUES POSED BY E-COMMERCE FORAMERICAN BUSINESSES ENGAGED IN DOMESTIC AND INTERNATIONAL TRANSACTIONSNAME: Francesco G. MazzottaSUMMARY: ... 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, Internetservers, 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, databaseprotection, 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 paperis 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 unlessthe 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 oftransactions that occur every day. n4An 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


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UNCW BLA 361 - Suffolk Transnational Law Review

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