Study On Jurisdiction Of E-contract In The USA

With the rapid development of e-commerce, a large amount of transnational and transregional commerce has been aroused. As a form of e-commerce, e-contracts are widely used in the international business, which apply a boundless and paperless trade method for the people. E-contract doesn't only make business convenient, but also reduce the trade cost. However, problems arise at the same time, the e-contract has its own qualities which are different from the traditional contract. And cyberspace's features are globalization, virtualization and non-centerizatiom, etc, traditional jurisdiction theory is challenged in dealing with the e-contract issue. As the biggest e-commerce country, the USA has good laws and much practice on e-commerce. Its theory and practice can be used for reference in other countries. According to what have been mentioned above, this essay will research into and analyze the legislation and justice on dealing with the jurisdiction of e-contract in the USA's perspective.There are three parts in this paper.The first chapter introduces the new challenges to the traditional jurisdiction rules on dealing with e-contract and two different views on solving the jurisdiction in cyberspace. It comes to the conclusion through discussing that we should make effort to improve the traditional jurisdiction rules in order to keep pace with the new condition of e-commerce. First, compared with the traditional contract, the e-contract has three characteristics: 1. e-contract is negotiated through internet; 2. the form of e-contract is different from the traditional contract; 3. the e-contract in the form of performing the contract is different from the traditional one. Second, it claims the challenges of the e-contract to traditional jurisdictional rules. The traditional jurisdiction rules are related to the power of physical world and geographical boundary. However, the cyberspace is virtual and global. So the traditional jurisdiction rules can't be used to solve the jurisdiction of the e-contract which is based on the internet. The last part put forward the importance of solving the problem of e-contract's jurisdiction. The jurisdiction of the e-contract isn't clear makes the cost of the e-commerce increase. Businessman can't make use of the improvement of the computer technology to solve the problem. So it's important that the jurisdiction of the e-contract is dealt with by the law.The second chapter discusses the jurisdiction clause in e-contract and speculates the validity of the clause both in form and substance. First, it introduces the jurisdiction clause briefly and it points out that the jurisdiction clause is the embodiment of autonomy principle. Second, it inquires into the validity of the form of the contract. First, the jurisdiction clauses are divided into clickwraps and browsewraps. According to the cases, we analyzes the validity of them in the form of the contract. Then it is pointed out that the jurisdiction clauses should be clear and conspicuous. Third, it discusses the validity of the jurisdiction in substance. Based on the legislation and legal practice of the USA, it is believed that the validity in substance is affected by fairness principle, public policy and statutes. The last part is the conclusion of the whole chapter. It points out that the jurisdiction clause is enforceable in the USA when its form and substance are legal.The third chapter concerns on the jurisdiction rules in the USA when there isn't jurisdiction clause in the contract or the clause is void. This chapter is divided into three parts. The first part concerns on the use and improvement of the traditional rules on the jurisdiction in dealing with the cases aroused in the cyberspace. This part introduces the traditional jurisdiction rules in the USA. The rules of the personal jurisdiction change from territorial principle in late nineteenth century to the"minimum contacts"which is formed in International Shoe. Co. v. Washington. Generally speaking, the court in the USA needs two requirements to exercise the personal jurisdiction on non-residents: 1.the forum states could exercise the personal jurisdiction based on its law. 2. exercise of the personal jurisdiction meets constitutional due process. Secondly, it is introduced that the traditional jurisdiction rules are applied and improved in dealing with the jurisdiction in the cyberspace. In the Inset Systems. v. Instruction case, the court holds that personal jurisdiction could be exercised if a defendant's passive web site is within the domination of the forum. In the Bensusan Restaurant Corp. v. King case, the court consider that defendant's creation of a passive web site, without more, doesn't establish the"minimum contacts"between the defendant and the forum state. So the court couldn't exercise the personal jurisdiction. In the Zippo Manufacturing Company v. Zippo Dot Com, Inc. case, the court crafts the"sliding scale"approach, which is applied in many cases afterwards. The three cases mentioned above represent three typical approaches to dealing with the jurisdiction in the cyberspace on the basis of the traditional jurisdiction rules. The second part introduces three late cases of dealing with the jurisdiction of the e-contract, in order to take an insight into the trend of courts'dealing with the jurisdiction of the e-contract. The last part, according to the theories and the legal practice, the reason for the courts'dealing with the jurisdiction of the e-contract is summarized. First, American courts apply the traditional personal jurisdiction rules to deal with the dispute over the jurisdiction of e-contract. Secondly, on solving the problem of the jurisdiction based on the internet, the courts try to establish the defendant has purposefully availed itself of the benefits of the forum state's law and economics primarily to exercise the personal jurisdiction. Lastly, because of the characteristics of the e-contract, the courts could find the personal jurisdiction is proper easily when the court deals with the jurisdiction of the e-contract.