Question: The U.S. position at the Hague Convention is that jurisdiction in business-to-consumer online transactions should reside with the business. Candidate comments? Particularly Harris Miller, a U.S. Government representative in this matter.

Nominee Replies

Emerson Tiller, J.D., Ph.D. - posted on 2000-09-29 18:27:22 I think that jurisdiction should be based on national rules and enforced by national governments. For example, in the U.S., we use the minimum contacts rule to determine if a business should be subject to jurisdiction in the consumer's home territory. Businesses generally have the right to opt out of the consumer's jurisdiction through a contract with the consumer that specifically excludeds such jurisdiction. I don't currently see a reason to abandon a policy that lets national governments decide these rules. Harris Miller - posted on 2000-09-29 12:49:43 First, I am a private citizen and the head of two non-profit technology organizations, the Information Technology Association of America (http://www.itaa.org) and the World Information Services Alliance (http://www.witsa.org). I am unaffiliated with any government. Second, I believe that ICANN should refrain from being involved in policy issues like this. Resolving jurisdictional issues involving the Hague Convention and and e-commerce is particularly complex. As I explain at some length below, these are matters best left to sovereign nations to resolve as appropriate. ICANN should not be distracted and seek involvement. The proposed Hague Conference Draft Convention on Jurisdiction and Foreign Judgments raises questions because e-commerce presents a number of unique challenges to contractual relationships that tends to upset transactional certainty for everyone. The Internet is an interactive and ubiquitous medium, which defies traditional notions of “physicality” – delivering information, products and services transparently across national boundaries. The Hague has been studying the issue of developing a treaty to deal with judicial enforcement of foreign judgments since 1992 and released its draft Convention late last year. The document, however, inadequately addresses and in some cases, woefully ignores, the advent of e-commerce. The e-commerce community has identified a number of vexing questions that must be addressed, questions affecting both the providers and users of IT. For example: Is a digital signature on an electronic contract legally recognized and enforceable? What constitutes an “offer” and an “acceptance” on the Internet? Should the “law of origin” or the “law of destination” apply to electronic contracts? How should digital information, software products and IT services be treated – as goods, as services, or as something new and unique? By merely establishing a website, is an online vendor engaged in an activity directed at the citizens in a foreign state? What is the relationship of this proposed Convention with other treaties dealing with matters of jurisdiction, and how will it deal with existing bilateral agreements and “autonomous” private international law rules? These are but a few of the issues not addressed in the current Convention. To conclude, I believe that the above issues (and others) are appropriately left to the proper national authorities to resolve. ICANN should remain focused on its specific technical mandate and not seek involvement. Lawrence Lessig - posted on 2000-09-26 23:18:26 ICANN does not control the law of jurisdiction, though it can take steps to assure that disputes get resolved in a way that is fair for its members. Whatever the default jurisdiction in a contract dispute is, the parties are typically able to choose a different jurisdiction. I would support rules that made sure that the choice of jurisdiction was not unduly burdensome on consumers.