Protective Jurisdiction Consumer Contracts Brussels Regulation
With the growth of cross border shopping, particularly over the internet, traders and consumers may often end up involved in contractual disputes. In view of the fact that most electronic commerce ('E-Commerce') contracts are between parties in different locations it is crucial for business executives negotiating such agreements to have an overall understanding of the legal framework and its concepts to address them at the negotiation stage. Since most modern businesses now transcend boundaries regional forums are now required to maintain and develop consistent and qualified judgements over the contractual agreements that seek its jurisdiction. Consumer contracts required the resolution of disputes to be based under the contractual provisions that are outlined. The freedom to choose and frame any contractual agreement needs to be flexible by looking to invite the application of different choices that are plausible regarding the 'law', 'forum' and 'venue' involved with the regulation of any given contract between parties separated by foreign borders.
Therefore, this dissertation seeks to ascertain the procedures and guiding principles that serve to determine the choice of forum due to its implied connection with the remit of the Brussels I Regulation in relation to consumer protection in relation to such contracts. At the same time, however, it will also be recognised in this study that, when compared to the rules regarding the choice of forum, the rules in relation to the choice of law are based upon the Rome Convention of 1980. However, both the Brussels I Regulation and the Rome Convention were designed to complement each other. This is because both of these enactments implementation was needed in practice so as to introduce much broader based consumer protection within the European Community (EC) and ensure appropriate jurisdiction to its consumers. However, it is the European Unions (EU's) adoption of European Council Regulation No 44/2001 on Jurisdiction & the Recognition & Enforcement of Judgements in Cvil & Commercial disputes - known more colloquially as the 'Brussels I Regulation' - that is central to our discussion that replaced and modified the 1968 Brussels Convention on Jurisdiction & Enforcement of Judgements in Civil & Commercial Matters (henceforth, the 'EEX-Treaty'). Signatories to this regulation have included all of the EU Member States except Denmark with the UK having implemented the EU rules via the Civil Jurisdiction & Judgements Order 2001 that came into force on 1st March 2002.
1.2 The importance of the Brussels I Regulation to Consumer Contracts
Since 2002, three jurisdiction regimes have applied within Europe in the form of - (a) the Brussels I Regulation, governing jurisdiction between all EEX Contracting States except Denmark; (b) the EEX-Treaty, governing jurisdiction between Denmark and the other EEX Contracting States; and (c) the Convention of 16th September 1988 on Jurisdiction & the Enforcement of Judgements in Civil & Commercial Matters (also known EVEX Convention and henceforth, to be referred to as the 'Lugano Convention') that is somewhat similar to the EEX-Treaty that governs jurisdiction between EEX Contracting States and the European Free Trade Association (EFTA) Countries along with Poland. It is also to be noted, however, that, as with the EEX-Treaty, the Brussels I Regulation established rules for determining which national court of the European Union (EU) Member States will have jurisdiction over disputes related to commercial contracts and facilitates the enforcement of judgements between different Member States.
The Brussels I Regulation also served to impact upon e-commerce related issues because of the fact that it also served to extend the protection of online consumers. In this regard, both the EEX-Treaty and Brussels I Regulation served to establish the general principle all contracting parties have the freedom of choice regarding the jurisdiction that is involved in any given case and may also serve to expressly agree upon which court will have jurisdiction in relation to any contractual dispute. This is because, if there is no express agreement regarding jurisdiction between the parties, the general jurisdiction rule has served to provide defendants who are domiciled within any given EU Member State, whatever their nationality, will be sued in their national courts Such a view is derived from the fact that, by way of illustration, Article 2 of both the EEX Treaty and the Brussels I Regulation stated that "1. Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State" and that "2. Persons who are not nationals of the Member State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State".
At the same time, however, it is also to be appreciated that Article 5 of both the EEX Treaty and Brussels I Regulation served to establish the rules that related to 'special jurisdiction' in the circumstances of a given case. By way of illustration, in cases of tortious liability the courts of the place where the delict, quasi-delict, or tortious event occurred or may occur will have jurisdiction according to Article 5(3) of the Brussels I Regulation. However, in cases arising from a breach of contract, defendants may be sued before the courts where the contractual obligation in question was to be performed under Article 5(1) of the EEX Treaty. This understanding of the legal position is not, however, applicable if such performance takes place on the Internet so Article 5(1) of the Brussels I Regulation has looked to provide some form of clarification in this regard as the provisions specifies that, unless otherwise agreed, the place of performance is "in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered" and "in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided". Therefore, the place of performance will be the place where an online purchaser downloads the relevant purchase information and not the place where it was loaded or sent from.
On the other hand, with regards to acts of tort, Brussels I offers no further specification regarding 'the place where the harmful event occurred'. This is largely because the only innovation brought by the Brussels I Regulation in this regard was in relation to jurisdiction with regards to tortious matters is the addition of the words 'or may occur'. As a result, it is also to be appreciated that legal action may now also be brought where the harmful event in a given case 'may occur' under Article 5(3) of the Brussels I Regulation. However, in the context of the Internet it is also to be noted that the jurisdiction provisions regarding an act tort are particularly relevant in relation to matters of defamation, unfair competition and copyright infringement. At the same time, however, it is also to be appreciated that the ubiquity of the Internet continues to give rise to an ongoing debate in relation to both case laws development in this regard and in relation to this doctrine. Therefore, it has come to be understood that, although supported by many authors and judges, the theory that, in cases of tort, delict or quasi-delict via the Internet, the place where the damage occurred should be where the Internet site was displayed by the claimant is far from being generally accepted.
It is also to be appreciated, however, that the basic rule of both the EEX Treaty and Brussels I Regulation is that the parties to any given contractual agreement will be free to be able to look to agree upon which courts will have jurisdiction to settle disputes regarding a given contract that will be deemed exclusive "unless the parties have agreed otherwise". At the same time, however, whilst the jurisdiction clauses in an given contract must be "in writing or evidenced in writing" under Article 17 of the EEX Treaty, the Brussels I Regulation has also extended the definition of "in writing" to "any communication by electronic means which provides a durable record of the agreement". As a result, this has served to means that, with regards, to the use of online terms and conditions containing a jurisdiction clause in a given contractual agreement, the acceptance of these kinds of terms and conditions need an e-mail confirmation so long as this information remains available on the purchaser's hard-disk. The reason for this is that the mere appearance of these kinds of terms and conditions upon the purchaser's screen will most likely not be deemed enough to signify a purchaser's acceptance of a seller's jurisdiction clause since jurisdiction clauses are ostensibly prohibited in consumer contracts - except for in keeping with the conditions that have been established under Article 17 of the Brussels I Regulation.
Both the EEX-Treaty and the Brussels I Regulation contain special rules that are to be applied to consumer contracts that are meant to provide greater protection for consumer as the weakest parties in consumer contractual relationships. This is because a 'consumer' has been defined as someone who looks to conclude a contract for a purpose that can be considered to be beyond their trade or profession and also, as a result, applies to further examples including online consumers buying CDs or booking hotels via the Internet in keeping with section 4 of the EEX-Treaty. At the same time, however, it is also to be appreciated that consumers that, for example, have booked a flight via the Internet are not concerned by the special regime that has been established under the aforementioned section 4. However, whilst, under Article 15(3) of the Brussels I Regulation, it has been stated expressly that this section will "not apply to a contract of transport, other than a contract which, for an inclusive price, provides for a combination of travel and accommodation", consumers who contract with a travel agent that sell a package which includes both the price of the airline ticket and the hotel accommodation to fall under the protection offered by section 4 of the EEX Treaty.
In relation to issues of jurisdiction regarding consumer contracts, it is to be appreciated this area is governed by both Article 14 of the EEX-Treaty and Article 16 of the Brussels I Regulation. With this in mind, this has served to mean that consumers are able to bring proceedings against their contracting party in the courts of the Member State where that party is domiciled or where the consumer is domiciled. As a result, it has been recognised in practice that consumers have a choice of forum, whilst proceedings that are actually brought 'against' the consumers may only be brought in the Member State where the consumer is in fact domiciled. Therefore, consumers are only able to depart from this protective rule by entering into an agreement after a dispute has arisen or by entering into an agreement that serves to permit a consumer to then look to bring proceedings in courts other than the courts that are recognised under Section 4 of the EEX-Treaty and the Brussels I Regulation in the way that has already been described in this discussion or by entering into an agreement if both the consumer and the other contracting party are at the time of its conclusion domiciled or habitually resident in the same Member State and agree to confer jurisdiction on the courts of that State so long as such an agreement is not contrary to that state's law.
As a result of such developments brought about by the Brussels I Regulation, the definition of 'consumer contracts' that has been utilised in the EEX-Treaty has been significantly broadened so at to significantly affect the jurisdiction in relation to contractual agreements with online consumers. This is because the EEX-Treaty has served to define 'consumer contracts' as being contractual agreements that have been reached for for the supply of goods or services where the conclusion of the contract in the consumer's state of domicile was preceded by a 'specific invitation' that was specifically addressed to them, through 'advertising', or where the consumer "took the necessary steps" for the contract's conclusion within a given state . Moreover, it is also to be appreciated that 'consumer contracts' have been recognised as including contractual agreements for the sale of goods on instalment credit terms as well as those made for loans that are repayable by instalments or for any other form of credit so as to finance the sale of goods whilst all disputes are to be resolved in their jurisdiction of domicile.
However, it must also be understood that, in practice, under Article 15(1)(c) of the Brussels I Regulation, this protective jurisdictional rule will only apply if a particular contractual agreement has been concluded with someone that "pursues commercial or professional activities" in the consumer's domicile Member State or where these activities have been directed to that State or several States including the consumer's domicile State so that "the contract falls within the scope of such activities". With this in mind, the Brussels I Regulation has also looked to include in the definition of 'consumer contracts' all contractual agreements where a company pursues commercial or professional activities in the Member State of the consumer's domicile or directs activities there. This is largely due to the fact that the EEX-Treaty's provision for a 'specific invitation' to be addressed to a given consumer has been replaced by the condition of an "activity directed to the Member State of the consumer" under Article 15 of the Brussels I Regulation.
At the same time, however, it is also to be appreciated that this new definition of 'consumer contracts' has impacted significantly upon online trade. By way of illustration, both the European Commission and Council released a statement in relation to Article 15 of the Brussels I Regulation with regards to the practical process of distance marketing via the Internet. In so doing the Commission and Council looked to emphasise the importance of the fact that, just because, "an Internet site is accessible is not sufficient for Article 15 to be applicable - although a factor will be that this Internet site solicits the conclusion of distance contracts and that a contract has actually been concluded at a distance, by whatever means". Moreover, the statement that the Commission and Council made at this time went on to state that the language and the currency used on the website do not constitute a relevant factor in looking to resolve a given dispute.
With this in mind, it has also come to be recognised that, under the remit of the EEX-Treaty in practice, the simple fact of operating a given website that is accessible to people all around the EU is not to be considered a 'specific invitation' aimed at consumers in other Member States. A 'specific invitation' may only be said to arise where a particular website is shown to be paying specific attention to the consumers of another Member State through their conduct (for example, their use of language or currency). More recently, however, it has been recognised under the Brussels I Regulation that the mere fact goods or services are offered online and can be purchased electronically in a consumers' domicile State will be considered enough to trigger the jurisdiction of the courts in this State where consumers purchase. In other words, when a consumer located in one Member State accesses a company's website located in another Member State and accepts the offer to purchase goods or services, the company will be considered to have directed its activities to the Member State of that consumer regardless of the company's intentions. Article 15 of the Brussels I Regulation will be said to apply automatically and the company operating the website will be liable to be sued by a consumer within the jurisdiction of their domiciles regardless of any jurisdiction agreement or any terms and conditions on a website.
That the position is not absolute is marked by the fact that there is a need for a distinction to be drawn between both 'active' and 'passive' websites in practice for the benefit of consumers AND the businesses running the websites. In this regard, it has been recognised that an 'active' website is one which serves to allow for the online conclusion of a contractual agreement between a business and a consumer, whilst 'passive' websites have been deemed to be only those which serve advertise a given businesses goods and services without enabling consumers to purchase online. The problem is that, whilst 'active' websites are within the scope of Article 15 of the Brussels I Regulation, the position is not so clear with 'passive' websites so that, by way of illustration, the European Parliament for one has opined that "the commercialisation of goods or services via an electronic means accessible in a Member State constitutes an activity directed to this Member State if the commercial site is an active site, i.e., if the operator intentionally directs his activity, in a substantial way, to this Member State".
On this basis, in spite of the European Parliament's efforts made to assuage such problems, it would seem that the addition of the word 'intentionally' in this regard does not really serve to clarify the situation. This is because it is arguable that the debate then moves on to as to when a particular business operator will be considered to have intentionally directed his activity towards a particular Member State. With this in mind, it would seem that the most effective and efficient means for business operators to avoid being sued wherever their website can be accessed is to include a notice or disclaimer on their website that serve to clearly define their 'target market(s)' and/or a notice which indicates that orders that are placed by consumers in certain other Member States will be refused. The problem with this kind of notice is that it would also seem to imply the use of technology to intercept those consumers who ignore such a disclaimer through the use, by way of illustration, of an electronic form that means the potential consumer has to indicate where they are from to place an order. However, even this does not really serve as an absolute resolution of the problems because the sale of digitised products including software will be much more difficult to restrict in this way.
Matters also remain somewhat unclear in view of the fact that, in cases of dispute brought by consumers, the courts and, more specifically, the European Court of Justice (ECJ) will need to rule upon the meaning of many technical notions in relation to issues of contractual jurisdiction online including 'directing activities' and 'active' and 'passive' websites. Moreover, it was also recognised as being incumbent upon the European Commission to report on the application of Article 15 of the Brussels I Regulation prior to March 2007 with a view to then recognising the remit of the ECJ to be able to then look to interpret 'directing activities' in a broad sense similar to the 'purpose-based' interpretation of the EEX-Treaty in favour of consumer protection. As a result, companies offering goods and services online are now faced with immediate jurisdiction in all EU Member States so that it is, therefore, arguable that the Brussels I Regulation is now not really serving to make a discernible contribution to legal certainty in relation to 'business-to-consumer' (henceforth, 'B2C') e-commerce. With this in mind, it is also perhaps somewhat noteworthy at this point that the remit of the Brussels I Regulation may serve to conflict with that of the E-Commerce Directive in this regard that seems to provide the rules applicable to online services should be those where the trader or Internet service provider (henceforth, ISP) carries out its activities rather than where the consumer is located.
However, as will be recognised further on in this dissertation discussion in section 5.1 ('The Importance & Special Character of E-Commerce'), the E-Commerce Directive only offers a limited framework for all EU Member States to operate within so as to regulate ISPs activities. On the other hand, the Brussels I Regulation seeks to provide for the recognition of rules for private international law for the protection of consumers so it is perhaps little wonder that the E-Commerce Directive recognises at Recital 23 explicitly that "it neither aims to establish additional rules on private international law relating to conflicts of law, nor does it deal with the jurisdiction of Courts". Moreover, with regards to the European Commission and Councils aforementioned statement in relation to the application of Article 15 of the Brussels I Regulation, both the Council and Commission have also sought to emphasise the fact they are aware the development of e-commerce online will serve to facilitate the economic growth of undertakings. At the same time, however, both institutions also sought to show that the development of new distance marketing techniques founded upon Internet use will be dependent upon their being mutual confidence between both businesses and the consumers themselves.
Regardless of the problems of interpretation in relation to the application of the Brussels I Regulation to consumer protection regarding 'active' and 'passive' websites, it would, therefore, seem that Article 15 of the Brussels I Regulation has looked to provide extensive protection to consumers in practice online in a way that has raised a great deal of concern for European e-commerce suppliers. This is because it would seem that the remit of the Brussels I Regulation serve to discourage European undertakings from offering goods and services electronically. Nevertheless, despite the recognition of such problems in practice, consumer support groups remain convinced that, by securing the protection of online consumers, the Brussels I Regulation will serve to build consumer confidence in B2C e-commerce. At the same time, however, there is a caveat here because, notwithstanding the extensive protection offered by Article 15 of the Brussels I Regulation, successful online consumers will still have to seek enforcement of judgements that they obtain in the courts of their domicile in the Member State of a given website's business operator where they are domiciled abroad. As a result, in view of the fact that the enforcement of 'home' court decisions is not always easy abroad - even in spite of the recognition of the EU and its development in keeping with the Treaty of Rome 1957 (amended to become the EC Treaty) - it is expected alternative dispute resolution (henceforth, 'ADR') will become increasingly important for successfully resolving online disputes brought by consumers.
II. Why does the consumer need protection in jurisdiction?
2.1 Equality for weak parties in contractual agreements
Thanks to the creation an ongoing advancement of the Internet - along with other similar advancements in technology - it is becoming ever easier to form relations between parties in different countries right around the world due to the enhancement of the communications infrastructure leading to many more complications in disputes where they arise. As a consequence, whilst any legal proceedings with an international flavour can clearly be very expensive and complex because the average consumer's involvement with, for example, the purchase of a DVD player in England that was manufactured in Germany is unlikely to stretch to much of an in-depth familiarity with the language, law and legal system applicable so that there are likely to be choice of law issues resulting . This then effectively serves to mean that consumers at all levels (including retailers) must have confidence in the system of redress available to them so as to have some idea of the law to apply and in what country's courts any dispute that arises is to be dealt with in as a means of resolving the remit of an said dispute.
However, under the remit of the Rome Convention 1980 (Rome I) , in relation to the law applicable to contractual obligations, this gives priority to the recognition of common choice-of-law rules in EU legislation under Article 20 that "shall not affect the application of provisions which ... lay down choice-of-law rules relating to contractual obligations and which are or will be contained in acts of the institutions of the European Communities or in national laws harmonized in implementation of such acts" . Therefore, in looking to consider the influence of the Rome Regulations upon English private international law, and the way in which it resolves conflicts of law between the English common law legal system and that of European law, the specific remit of the Rome Regulations must also be discussed . On this basis, the provisions within Rome I arose out of a Proposal for a Regulation on the law applicable to contractual obligations at the end of 2005 . With this in mind, it is commonly understood that the Regulation itself was drafted to account for the information the European Commission had gained from the remit of the Green Paper it issued regarding the conversion of the Rome Convention . This is because it was recognised within the Green Paper that the Rome Convention did not explicitly deal with which law governed the conditions for any assignment against third parties (excluding the debtor) . But then it has also been argued under Article 13 of Rome I's Regulations that it is necessary to look to apply the law of habitual residence to determine which nations legal system applies in the resolution of a given dispute where the choice of law involved must be resolved in order to proceed .
2.2 Party autonomy can't be applied in all the contract.
III. The contradiction in the Brussels I Regulation.
3.1 The contradiction between the consumer and the economic development.
IV. Compare the Brussels I Regulation system to the USA system.
V. Special difficulties in e-commerce
5.1. The importance and special character of e-commerce
In looking to better understand the problems with the ongoing development of e-commerce frameworks, it is to be appreciated that, allied to the growing use of developing technology like the Internet by businesses and consumers globally, electronic contractual agreements have also become increasingly significant through the development of e-commerce frameworks. This is because such frameworks are now considered to be analogous to a real marketplace with a view to revolutionising the way that business is conducted around the world today meaning that legal practitioners have had to seek clarification on the law that applies in practice and for greater pressure to be exerted on the EU and other international agencies to establish 'special protection' for Internet consumers. By way of illustration, it must also be recognised that aspects of traditional dispute resolution systems have been merged leading to new cost effective mechanisms for dealing with the growth in electronic contracts' use and the time they become binding.
As a result, the enactment of Directive 2000/31/EC (henceforth, the 'E-Commerce Directive') served to establish principles in an effort to look to regulate E-Commerce transactions regarding codes of conduct (e.g. on-line-dispute settlement) in the EU through which the service provider is bound, limitations to the liability of Internet intermediaries, principles relating to contracting on-line, and the role of governmental authorities in practice so as to then make sure that all agreements are honoured. This is largely because the enactment and implementations of the E-Commerce Directive arose from out of a background meant to enhance the EU's internal markets' operation by removing specific legal barriers to the free movement of information society services between EU Member States to make electronic contracting much easier for consumers and businesses over the Internet. At the same time, however, the definition of such services already existed in Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations for the provision of information in the field of technical standards and regulations and rules. Then, Directive 98/84/EC on the legal protection of services based on, or consisting of, conditional access was also enacted and implemented in relation to the legal protection of services based on, or consisting of, conditional access regarding any service normally provided for remuneration at a distance by means of electronic equipment for the processing and storage of data at the individual request of a recipient of a service.
However, it then fell upon Member States implementing the E-Commerce Directive - in following the doctrine of direct effect for European enactments in individual EU Member States - to establish legal requirements regarding information society services in relation to information, advertising, shopping, contracting and the content of a given service and the provider's liability. This is largely because the E-Commerce Directive is a maximum harmonisation Directive meaning there are only limited circumstances where some Member States may interfere with the services that have been provided for by other states. Therefore, as an EU Member State, UK policy makers have enacted the Electronic Commerce (EC Directive) Regulations in 2002 (in keeping with the European Communities Act 1972) to provide for the fact domestic service providers undertaking unsolicited commercial communications must regularly consult and respect opt-out registers.
5.2 The disputes in e-commerce
The E-Commerce Directive has, however, still received considerable criticism for failing to provide any real guidance regarding the legal position of an electronic offer and, more importantly, an acceptance to determine at what point in time such a contract becomes binding - the closest being an acknowledgement of service so if this is not received the order made does not exist. However, in spite of such criticism it is also to be appreciated that the EU's strategies have looked to continuously evolve through community legislation (specifically, the E-Commerce Directive & Directive 97/7/EC on the Protection of Consumers in Respect of Distance Contracts) to reflect ongoing developments under the United Nation's Commission on International Trade Law (UNCITRAL) Model Laws on Electronic Contracts 1996 and Electronic Signatures 2001 (henceforth, 'the UNICITRAL Model Laws') that attempted to clarify certain issues of message communication. Therefore, it seems prudent for parties to avoid the application of the rules or, alternatively, adopt the arduous process of analysing the communications 'topography' to determine if the rule applies, but the UNCITRAL Model Laws should be moved to guarantee uniformity regarding contract formation.
Moreover, problems in this area have arguably only been further exacerbated by the fact Articles 3(1) and (2) of the E-Commerce Directive merely provide for the fact information service providers must only be compliant with the EU Member State's provisions where they are created, whilst other Member States are unable to restrict the freedom to provide information services from another member state. As a result, it also needs to be recognised the exceptions to the rules that have developed only arise for reasons of public policy, health, security and for the protection of the interests of both consumers and the retailers themselves under Article 13(4) of the E-Commerce Directive. However, Article 1(4) of the Directive also provides that this does not serve to "establish additional rules on private international law, nor does it deal with the jurisdiction of the court" leading to debates regarding whether the principles espoused actually apply with regars to the legal considerations that are involved with selling online since the EU law enacted to date.
5.3 How to determine the jurisdiction of e-commerce
In the face of such criticisms, ongoing efforts have been made to reform the law in Europe regarding the legal considerations involved with selling online. Therefore, by way of illustration, it must be recognised that for binding electronic contracts to become a more legitimate means of trading within the EU, consumers must be confident in the safety and transparency of the system that has developed making the broadening of the 'special protection' regime for consumers extremely important. This is because, whilst the Directives that have been implemented (specifically, Directive 97/7/EC, Directive 1999/93/EC on a Community Framework for Electronic Signatures, and the E-Commerce Directive) to date seek to deal with the problems that are involved with being an Internet consumer, for example, at Article 11 of the E-Commerce Directive stating that an agreement to sell products or services will not be concluded until the parties have access to the order and the acknowledgement. Moreover, there is also a need for greater co-ordination regard the law that applies where there is a conflict of laws between legal systems due to the need to respond to the difficulties caused by the growth of e-commerce and Internet trading.
With this in mind, as has already been alluded to earlier in this discussion, it would seem that Internet consumers require 'special protection' in view of the way both goods and services are purchased since Internet consumers usually have to make payment in advance and enter both their financial and personal details. Therefore, consumers need to know their information will not be used by unscrupulous individuals and that they have similar rights to more traditional consumers because they should also be entitled to get the goods and services they want without any undue stipulations in law. This is because any legal proceedings with an international flavour can be very expensive and complex since the average consumer's involvement with, for example, DVD player's purchase in England manufactured in Germany is unlikely to stretch to an in-depth familiarity with the German language, law and legal system applicable. As a result, consumers at all levels must have confidence in the system and have some idea of the law that is to apply and in what country's courts any dispute is to be dealt with. Such a need was then only further exacerbated by the fact most consumers believe being sued abroad is included in any business' risk management and those wishing to avoid being sued have to organise their websites so it is impossible to enter into a contract with consumers from certain EU Member States.
Therefore, it is also to be appreciated the Rome I and II Regulations have developed because it is becoming ever easier to form relations between parties in different countries due to the enhancement of communication infrastructures leading to many more complications in disputes. As a result, English private international law has been taken to relate to that part of domestic law concerned with cases found to also involve a foreign element in the nature of a given dispute. This is because there is often an element of conflict of laws in the relationship between European and English law so there is a necessity to determine whether English or foreign courts have jurisdiction regarding and when an English court will enforce a judgement previously given by a foreign court. As a result, whilst, for example, the E-Commerce Directive has sought to deal with Member States' regulatory laws scope, it does not concern itself with jurisdiction and has also experienced problems with the recognition of when a contract's acceptance actually arises to be more formally recognised as being established.
VI. Conclusion:
Having sought to consider the protective jurisdiction in consumer contracts under the Brussels I Regulation
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