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E – Commerce and the Applicable Law Rules

Judge Ehab Maher Elsonbaty Judge of South Sinai Court in Egypt and Visiting Scholar in the Institution for computer and communication law, CCLS, Queen Mary, University of London. E – Commerce and the Applicable Law Rules. E-commerce, growth and effects. Definition of e-commerce (e / mobile)

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E – Commerce and the Applicable Law Rules

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  1. Judge Ehab Maher Elsonbaty Judge of South Sinai Court in Egypt and Visiting Scholar in the Institution for computer and communication law, CCLS, Queen Mary, University of London E – Commerce and the Applicable Law Rules

  2. E-commerce, growth and effects • Definition of e-commerce (e / mobile) • Players of e-commerce. * Consumers are for the first time a part of international commercial transactions. * Government procurements / international organizations. • The distance between the “beginning” and the current situation. • Impact on developing countries (small enterprises – transparency in governmental transactions – jobs..) • Numbers and statistics. * Online population 2004, 700 – 900 millions.(%80 are EU + US + Canada – in English). * 36,267, 755 domain names.(850,000 weekly)

  3. A new suite or a different cut? • Are the existing legal systems capable of governing e-commerce transactions? • The Internet is over regulated or not regulated at all? • The need to allow the online transactions the same protection and certainty as the “PAPER WORLD” • Trust, Facilitate and enable more than restrict and ban! • Filling the gaps? • But how and who?

  4. Choice of law rules • Definition of choice of law rules. • Different methods of choice of law rules: • Classical method or theories. (categorization – connecting factors ) • New methods or theories. * Harmonized conflict of law rules. * harmonized substantive rules. (regional – International) * convergence. * Model laws.

  5. Civil and common law, the gap between the legend and the reality! • Many scholars love to claim that the difference between civil law systems and common law systems is wide. • This is not true, it is a tendency to escape from comparative visions and deeper studies. • Both of the legal system have many similarities and they can collaborate together. (European Union for example – more than % 60 of English law is statutes)

  6. Challenges for choice of law rules • Is the classical method the only / best / available solution? • Does the classical method of applicable law capable of interacting with the new developments and changes in all the international and national levels? Globalization for example?

  7. How does e-commerce challenges classical choice of law rules • Identity /person • Location • Material / property • Nationality • Time • Contract (capacity, formation, conclusion, warranties, payment…etc.) • Technology v. law • Cost • Judges, lawyers and other legal professions (old tools for moderns issues)

  8. European / UK approach • E-commerce directive 2000/31/EC. • The Electronic Commerce (EC Directive) Regulations 2002. • Convention on the Law Applicable to Contractual Obligations, Rome 1980. • Proposal for a regulation of the European on the law applicable to non – contractual obligations (ROME II) * Business to business. * Business to consumers. • New commission proposal for services? Nothing new!

  9. Egyptian approach • Draft of e – commerce legislation. * Adopting the UNCITRAL model law on electronic commerce. * The applicable law on e-commerce transactions is still governed by the existing choice of law rules + International conventions (CISG)

  10. The possible solutions for applicable law on e - commerce transactions • The classic choice of law rules? • Uniform choice of law rules? • International substantive rules? • International arbitration? • Cyber space law? • Model laws and contracts?

  11. The solution 1 • Party autonomy v. public policies and mandatory rules. • A greater role for party autonomy. • Open minded vision of public policies. • Consumer contracts and mandatory rules?

  12. The solution 2 • Convergence rules to launch a global legal system to govern e-commerce. (gradual steps) • Wide legal frame work. • On line dispute resolution system: (international organization or any other neutral body such as universities) • Certain. • Reliable. • Fair. • Transparent. • Affordable cost. • Speed. • Legitimate. • Enforcable. • A continuous working process which can accommodate the fast developments of e-commerce with less specifying technological terms and standard.

  13. E – Commerce and the Applicable Law Rules • Thank you for your attention. Judge Ehab M. Elsonbaty, ICCL, CCLS, Queen Mary, University of London e.elsonbaty@qmul.ac.uk ehabelsonbaty@hotmail.com

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