Commercial Communications and Services: Electronic Commerce and the Resolution of Cross-border Conflicts
| Autor | Prof. Dr. Isabel Hernando |
| Cargo del Autor | Commercial Communications and Services: Electronic Commerce and the Resolution of Cross-border Conflicts |
Basically, commercial communications are all forms of communications designed to promote, directly or indirectly, the goods or services or image o a company, organization or person pursuing a commercial, industrial or craft activity or exercising a regulated profession. Therefore, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services is commonly considered as services of the Information Society.
Businesses taking advantage of these capabilities include online marketing and advertising services, information services (financial, legal, medical); those engaged in the sale of real estate, the sale of medicines, products (wines, clothing, flowers, books, etc. ), the distribution of music, electronic banking, auctions, gaming and gambling.
These services are often already heavily regulated by national and international laws, and their migration 'on-line' create a new legal threshold from which the following assumptions can be made:
Electronic Commerce and the Resolution of Cross-border Conflicts.
In the context of electronic commerce and the Internet, the extra-jurisdictional aspects to each transaction increase not only due to the location of the persons and the business activities concerned, but also due to the manner in which it is conducted (e. g. as business to business contracts, or business to consumers contracts). Some of the legal issues involved include intellectual and industrial property rights; consumers protection, protection of privacy and personal data, and exemption from responsibility[49]. The international dimension of the Internet and of electronic commerce increases the potential for conflict, in that the legal systems of different countries may be involved and the legal systems may be in conflict in the treatment of the legal issues. For the resolution of these conflicts, we may distinguish between two approaches:
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Settlement of Cross-Border Conflicts by Courts of Law
In the first approach to settling cross-border conflicts, the rules of international private law may need to be applied. The aspects that must be taken into account are the following:
- First, the identification of the jurisdiction charged with resolving the matter;
- Second, the identification of the applicable laws for the resolution of the conflict (also called conflict of laws or selection of the law);
- Third, recognition and enforcement of foreign judgments (also known...
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