BizAims

For many years now modern legal experts have been concerned with the phenomenon of globalisation of the economy. Accordingly, the globalisation of physical exchanges saw unprecedented growth during the 20th century owing to advances in transport, logistics and means of communication. That surely heralded the recent upheaval we have seen with automated information processing during the seventies, followed by computerised data exchange in the nineties, and finally, more recently, the digital networks such as the Internet which contribute to the globalisation of exchanges and communications. Whereas the first networks were closed and reserved for those involved in a particular business sector (banking, maritime transports, automobiles, mass distribution, …), with electronic transactions in an open environment, the legal issues are taking another turn, assuming other forms: the States do not intend to lose one iota of their sovereignty and a substantive law on electronic international trade is gradually being sketched out. However, the principles of free exchange and freedom of establishment are also to be found in the European internal market, based on freedom of movement (people, goods, services and capital), and in the context of the OECD and the WTO which promote free exchange and the prohibition of customs barriers or other quantitative restrictions to entering markets . Our modern societies are in the process of drawing up international rules for relationships which are being formed using new media, the digital networks. Accordingly, new methods of establishing standards that combine the legal, technical and security aspects are appearing.

Currently, within the information society it is noteworthy that electronic commerce hinges on two central themes connected with temporo-spatial considerations:

electronic communications transcend distance and time between people and goods and services, numerous people interact with their legal environment by moving around, with no fixed geographic location. However, aware of this phenomenon, the States tend to have an effect on these parameters by localising the liability of the people who supply electronic services in the information society and by regulating cross-border transmission of data which takes place in a relatively short space of time and therefore precludes any physical supervision. We need to act upstream, to establish a legislative framework. However, in addition to the fact that information society service providers (providers of access and hosts) are able to move around, nevertheless, people themselves become nomadic due to the portability of communication terminals (mobile telephones, lap-top computers). It is now possible to trade from any part of the world and at any time (24 hours a day 7 days a week). However, the nub of my arguments will focus on methods for establishing international rules to govern the activities of electronic commerce , but I shall only touch on issues of private international law indirectly (conflicts of laws and jurisdictions).

Together with the principles of freedom of establishment, access, pursuing an activity and free movement of information society services in the internal market, the  European directives (electronic signature and e-commerce)  include the principle of subjecting the service provider to the domestic legislation of the State in which he is established: the law of the place of establishment . The same idea can be found indirectly in the laws and proposed laws drawn up at international level in the United Nations Commission on International Trade law (UNCITRAL). Moreover, it is true that in fiscal matters, stable establishment is the key concept which serves as a basis for the taxation of electronic commerce (VAT). According to the ECJ, stable establishment is characterised by a “permanent combination of human and technical resources required to provide given services”. The fiscal dimension will be left out of the analysis.

Furthermore, data are governed by the principle of free movement but it must be pointed out that so far as concerns recognition of foreign electronic signatures and certificates, equivalence is either fixed a priori under the alternative system of the electronic signatures directive, or in relation to a level of reliability in the approach adopted by UNCITRAL .

However, there is another area that includes international aspects and which will not be dealt with either, that is to say, the cross-border flow of personal data outside the European Community. In this context, an adequate level of protection is required; it can be expressed in “safe harbor” principles or in standard contracts provided for that purpos.

The two European laws on electronic signature and electronic commerce exclude private international law from their scope of application, but each, in its own way, prescribes the law of the place in which the service provider is established as a rule of jurisdiction, firstly for the liability of certification services providers  and secondly, for services in the related field supplied by Internet service providers . This location of service providers in the place in which they carry out their business is the counterpart of the principles of freedom of establishment and freedom to carry out their business which underpin the free movement of services. Let us remember that from another point of view, so far as tax is concerned, the States apply the traditional principle of territorial jurisdiction based on the no less traditional concept of “stable establishment”, but it can be evaluated differently from that which appears in the “electronic commerce” directive.