Law of Electronic Commercial Transactions: Contemporary Issues in the EU, US and China

by Fangfei Wang; Faye

• ISBN13: 9780415557450
• ISBN10: 0415557453
• Edition: 1st
• Format: Hardcover
• Copyright: 2010-02-25
• Publisher: Routledge

Summary

The exponential growth of electronic usage in global commercial transactions has generated potential opportunities in productivity, facilitated the cross-border free movement of goods and service, and stimulated export and import trade as well as domestic sale, but at the same time, it has led to new challenges to existing laws due to the unique characteristics and complexities of online technology, culture and social behaviours. This book compares the legislative frameworks of e-commerce in the EU, US, China and International Organisations. It highlights and analyses the main legal obstacles to the establishment of trust and confidence in doing business online. It provides an in-depth research into finding solutions to remove the barriers to the validity of electronic contracts and signatures, the enforceability of data privacy protection, the determination of Internet jurisdiction and choice of law, as well as the promotion of online dispute resolution. It encourages modernisation and harmonisation of laws concerning electronic commercial transactions through well-balanced area-specific international instruments. Law of Electronic Commercial Transactionswill be of great interest to academics, legislative organisations, practitioners and lawyers in the field of international commerce.

Table of Contents

Table of cases	p. ix
Abbreviations	p. xiii
Acknowledgements	p. xv
Preface	p. xvii
Introduction	p. 1
The business and legal landscape of electronic commercial transactions	p. 3
Concepts and features	p. 4
Internet	p. 4
Electronic commerce	p. 4
Benefits: economic and social impacts	p. 5
The legislative approaches	p. 7
Global regimes	p. 7
Other regimes: EU, US and China	p. 10
Technical and legal barriers to online commerce	p. 13
Contracts of sale of goods	p. 13
B2B Transactions: international trade	p. 14
B2C Transactions: consumer contracts	p. 17
Contracts of carriage of goods	p. 18
Electronic payments	p. 23
Dispute resolutions	p. 24
Summary	p. 25
Electronic contracts	p. 29
The scenario of electronic contracting	p. 29
Legal concerns in response to the scenario	p. 30
What is an electronic contract?	p. 33
The definition of electronic contracting	p. 33
Features: email v. clickwrap v. shrinkwrap	p. 33
The online contracting parties: who is contracting online?	p. 35
When is an electronic contract made?	p. 38
Dispatch and receipt of an electronic communication	p. 38
Time of dispatch	p. 38
Time of receipt	p. 39
Offer and acceptance	p. 41
International legislative developments	p. 41
Availability of contract terms	p. 49
Error in electronic communications	p. 50
Current legislation in electronic errors	p. 51
Obstacles in regulating electronic errors	p. 55
Solution I: implication from the Microsoft Outlook case	p. 56
Solution II: influence of European Contract Law	p. 60
Where is the contract made?	p. 63
Place of business	p. 63
Place of performance	p. 64
Contemporary issue: electronic battle of forms	p. 66
International legislation: CISG and PICC	p. 67
US legislation: UCC	p. 68
EU legislation: PECL	p. 68
Chinese legislation: CLC	p. 69
How is 'battle of forms' resolved in electronic contracts?	p. 70
Summary	p. 71
Online security	p. 75
Electronic signatures	p. 77
Current legislation: EU, US and China	p. 78
Forms of electronic signatures	p. 79
Word documented or picture-scanned signatures	p. 80
Email signatures	p. 80
Digital signatures	p. 80
Benefits	p. 82
Functions	p. 83
Legal recognition	p. 84
Electronic authentication	p. 88
What is electronic authentication?	p. 88
The differences between E-signatures and E-authentication	p. 89
Trusted third parties: Certification Authorities (CAs)	p. 89
Definition	p. 89
Requirements	p. 90
Functions and roles	p. 91
Forms	p. 91
Conditions of establishment	p. 92
Contemporary issue: regulating online intermediaries-CAs	p. 94
What are the duties of CAs?	p. 94
What are the contractual liabilities of CAs?	p. 94
What is the international regulatory standard of CAs?	p. 97
Contemporary issue: protecting information in electronic communications	p. 103
Data protection policies and practices	p. 105
EU	p. 105
US	p. 108
China	p. 109
Internet privacy: regulations and practices	p. 110
International framework	p. 110
EU	p. 113
US	p. 114
China	p. 116
Summary	p. 120
Dispute resolutions	p. 123
Resolving electronic commercial disputes	p. 125
Internet jurisdiction	p. 125
EU rules applied in cyber jurisdiction	p. 126
US jurisdiction tests	p. 132
Chinese legislation on internet jurisdiction	p. 136
Summary: a comparative study	p. 138
Applicable law for internet-related disputes	p. 139
EU	p. 139
US	p. 145
China	p. 149
Summary: a comparative study	p. 151
Online dispute resolution	p. 151
Current legislation in the EU, US and China	p. 152
Global successful examples of ODR services	p. 155
The future of ODR: international standardisation	p. 161
The future	p. 165
Conclusions and recommendations	p. 167
Future legislative trends in the EU, US and China	p. 167
Solutions to obstacles in the law of electronic commercial transactions	p. 169
United Nations Convention on the Use of Electronic Communications in International Contracts 2005	p. 173
United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea	p. 183
Notes	p. 236
References	p. 263
Index	p. 269
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