Comlfict of laws and international civil procedure problems of e-commerce

2000 Fiscal Year Final Research Report Summary

• Project/Area Number: 09837001
• Research Category: Grant-in-Aid for Scientific Research (C)
• Allocation Type: Single-year Grants
• Section: 一般
• Research Field: 国際取引
• Research Institution: Tsukuba University (1999-2000); Kanazawa University (1998); Kyoto University (1997)
• Principal Investigator: MOTONAGA Kazuhiko Tsukuba University Institute of Sicial Sciences Associate Professor, 社会科学系, 助教授 (80272938)
• Co-Investigator(Kenkyū-buntansha): NAKANISHI Ysaushi Kyoto University Guraduate School of Law Asociate Professor, 法学研究科, 助教授 (50263059) ; MORITA Hiroshi Chiba University Faculty of Law and Economics Associate Professor, 法経学部, 助教授 (70251189) ; DOGAUCHI Masato The University of Tokyo Guraduate School of Law and Politics Professo, 大学院・法学政治学研究科, 教授 (70114577) ; YOKOMIZO Dai Kanazawa University Faculty of Law Associate Professor, 法学部, 助教授 (00293332) ; HYAKAWA Yoshihisa Rikkyo University Faculty of Law Associate Professor, 法学部, 助教授
• Project Period (FY): 1997 – 2000
• Keywords: conflict of laws / international civil procedure / e-commerce

Research Abstract

In cyberspace, where there is little meaning in what is located where, it is difficult to localize transactions, which means traditional methods of conflict of laws are obsolete. It would be better for uniform rules applicable to transactions in cyberspace to be created, but it is highly unlikely such rules to be formed. We can employ party autonomy, which has nothing to do with spacial factors of the transaction, but it has its own problem. Although it is suitable to make high predictability, it is not free from abuses by the party who has more power in negotiation, as precedings argue. To accomplish these two ends simultaneously and harmoniously, it is one way to determine the applicable law according to the factors expressed in the transaction, not to the actual one. On the other hand, civil procedures which are formed to resolve conflicts arising out of international trades are national-based for now. That means we must first determine where we should start the procedure-the problem of jurisdiction. But they consider spacial factors of the conflict, such as party's residense, stipulated place of performance, etc, when deciding wheather there is jurisdiction or not. So it may lead to unexpected situation for parties because they pay little attention to such spacial factors in cyberspace transaction, as said above. Generally, it is said we should accomplish fair and prompt resolution as well as equity in parties in international civil procedure, but predictability is equally significant in this context. We will be benefited from cyberspace-based conflict resolution system, if it is duly constructed. Part of such system is realized for the conflict about domain name.