Lee A. Bygrave (red.) YULEX 2002 - Universitetet i Oslo

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22 Emily M Weitzenböck
Europe, it is not unique to virtual enterprises. Suffice it here to say that like
other online businesses, VEs should be aware that they are open to being
sued by customers in those countries where the VE has actively directed its
activities [Lubitz 2001].
5 Determining Applicable Law in the Absence of Choice
Once the competent forum has been determined, if the parties have not selected
the law applicable to the contract, then the court seised of the matter
must determine the proper law.
Where a dispute is tried in one of the fifteen EU member states, the Rome
Convention may be applicable. This Convention applies to all contractual obligations
involving a choice between the laws of different countries, except for
the matters specified in Article 1 of the Convention such as succession, insurance,
matrimonial and family matters. Both B2B and B2C matters may fall
within the Convention, as may contracts relating to goods and/or services.
Where the contract is one of sale of goods, the 1980 United Nations Convention
on Contracts for the International Sale of Goods (CISG) might have
relevance. The CISG, though not a choice of law convention with conflict
rules, might be applicable as substantive law to sales contracts between parties
with places of business in different contracting states. Where only one of
the parties has a place of business in a contracting state, the CISG will still be
applicable if the private international law rules lead to the application of the
law of a CISG-contracting state [CISG, Article 1]. This Convention applies
only to B2B sales contracts and is entered into by most of the EU and EFTA
states (except for Great Britain, Ireland, Portugal and Liechtenstein). It has
substantive rules such as on the formation of a sales contract, duties and
obligations of the seller and buyer, passing of risk and breach of contract.
If the CISG is not applicable and the matter relates to international sales
of goods, the 1955 Hague Convention on the Law applicable to International
Sale of Goods might be applicable where the parties are from the contracting
states of this Convention. Western European contracting states are Belgium,
Denmark, Finland, France, Italy, Norway, Spain and Sweden. All the aforementioned
states apply the Hague Convention only to B2B sales, except for
Norway where it is also applicable to B2C sales.
A court seised of a matter which has an international element would thus
have to determine which of the aforementioned international conventions is
applicable, depending on the nature of the dispute and the parties involved.