The regulation of trans frontier electronic contracts : analysis of approaches to rules on the validity of e-contracts and the law governing them

Abstract

Since the dawn of the Internet age and the realisation of the potential of e-commerce this era has been hailed as a revolution. This thesis proposes to ask whether or not e-commerce is truly going to trigger off a legal revolution of the same magnitude as the technological revolution we have witnessed in the creation of this new medium of selling and communicating. To what extent do traditional rules of civil law tackle the realm of e-commerce and to what extents are they antiquated? If we argue that civil law could have sufficiently covered e-commerce transactions then what are the merits of particular regulation, does it help consumers or just serve to further confuse them? The paper starts by trying to display that e-contracts require that certain basic questions be answered and debates whether these questions might have been able to be answered by pre-existing legislation, while questioning to what extent national E-commerce laws duplicate age-old principles of their respective legal traditions. Does e-commerce require a complete overhaul of our long-standing civil and commercial codes? Do new trading patterns necessitate a new legal infrastructure? Could they squeeze under the protection offered by existing legislation? This paper generally concludes that e-Contracts are themselves highly unremarkable in that their elements remain unchanged. Great changes, however, have occurred to B2C online trade and the pace of trade and status of trading parties are radically different to what they ever were in the past. It is precisely these changed trading patterns-that offer a policy justification, (as opposed to a legal justification) for the necessity of new legislation to accommodate the chances brought about by e-commerce. It goes on to identify and compare the competing controllers and models of governance in cyberspace drawing on debates and juxtaposing different attitudes and approaches to regulation of cyberspace. It then tries to summarise the chief principles that law-makers based or ought to base their rules on. The thesis then identifies and discusses the special problems raised by e-contracts with regards to conflict of law issues. The concluding chapter offers some thoughts and a proposal on the future regulation of e-contracts in the light of the discussion running through the paper. The thesis concludes that on the basis of the apparently insurmountable challenges that e-contracts present to conflict of laws rules perhaps what is needed is a substantive minimalist yet global law which tackles the area.