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The internet has changed the world. It has greatly impacted communication virtually reducing the world to a global village by enabling individuals to communicate easily and quickly. The internet has also changed the conventional ways of buying and selling and has transformed commercial activities.
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The internet has changed the world. It has greatly impacted communication virtually reducing the world to a global village by enabling individuals to communicate easily and quickly. The internet has also changed the conventional ways of buying and selling and has transformed commercial activities. The term “e-commerce” simply put is the use of the internet to conclude contracts through electronic means. In Europe, statistics show that most countries have a growing internal e-commerce market with more and more e-shoppers using the internet to purchase goods and services daily. [1] Countries like Norway, Germany, France and the United Kingdom (just to mention a few) have the highest percentage of individuals between the ages of 16-74 that use the internet to order goods and services. [2] While national e-commerce markets flourish, such an evident contrast exists with regards to the growth of cross border consumer e-commerce. A report on cross border e-commerce in the EU [3] shows that while consumer e-commerce is taking off at the national level all over Europe it is still quite rare for consumers to purchase goods and services on the internet from other Member States. [4] A further report conducted in 2006 estimated the European e-commerce market to be worth 106 million Euros. [5] Cross border e-commerce has an untapped potential that could empower not only the economies of member states, but consumers as well by providing them with diversity in choice and prices.
There are noticeable barriers to cross border consumer e-commerce which hinder its growth. Several reports like the above mentioned EU report [6] and the Organization for Economic Cooperation and Development (OECD) Conference on Empowering E-Consumers [7] have identified several barriers that have stunted the growth of cross border e-commerce. Factors such as: lack of internet connectivity in homes across local areas in Europe; lack of access to specific websites from other countries advertising goods and services; inadequate consumer confidence in online payment systems from other jurisdictions as well as delivery methods, returns policies and refunds. Language has rightly been identified as one of such barriers, [8] perhaps one of the most important aspects, because it encapsulates such matters as communication, advertising and jurisdiction.
This essay begins by giving a background on the laws that govern jurisdiction and choice of law in Europe, so as to lay a foundation and provide a context for which jurisdiction shall be considered. It then focuses on the main issue regarding the impact of the language of a website on issues of jurisdiction and applicable law, in order to point out the significant issues therein which lends credence to the fact that language is a barrier to the development of cross border e-commerce. The scope of this essay is mainly focused on the European Union since it presents the perfect model for a diverse multi-linguistic and multi-cultural Community. Occasional examples of other countries have been used to provide a contrast on what is obtainable in Europe. The respective Directives which govern E-Commerce in the EU have been used for reference, as well as several relevant European Court of Justice (ECJ) cases. These have been considered in an attempt to display the framework put in place regarding jurisdiction and applicable law on commercial transactions in the EU and how the courts have interpreted these laws. This essay will further explore other factors that impact jurisdiction and applicable law thereby hampering the growth of cross border consumer e-commerce. It concludes by making recommendations as to the ways cross border e-commerce can be encouraged in the EU, and possible alternatives to circumvent issues of determining jurisdiction and applicable law when dealing with disputes arising from electronic commercial activity.
BACKGROUND
It is trite knowledge that legal action sometimes ensues as a result of commercial contracts. D.R Johnson and D. Post, in an article titled “Law and Borders – The Rise of Law in Cyberspace”, [9] explore how the internet disregards geographical boundaries, and how conventional laws of jurisdiction are “thrown in disarray” and as a result need to be properly governed by clear legal rules. [10] The importance of this need cannot be over stated, especially when considering disputes arising from e-contracts, especially in cases involving cross border consumer .