Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
30 Cards in this Set
- Front
- Back
|
The Business and Internet |
-Internet Facilities, education, entertainment and social interaction -Internet business transactions usually involve third parties (ebay, paypal etc) -Normal civil and criminal laws and regulations apply (No "internet laws") -Laws in place are not readily adaptable -Governments have been reluctant to introduce regulations (This is now changing) |
|
|
Jurisdiction |
-Which jurisdictions law applies? Enforcement and determining appropriate jurisdiction can sometimes be a issue -Internet does not recognize borders.. -Must determine where action should be brought -Regulations could limit freedom of expression, movement and association -Online transactions raise taxation issues, (sales tax still applies). -Generally a particular jurisdiction can exercise jurisdiction if defendant is a resident there or if action underlying the complaint took place there -Better Approach: Allow judicial action only where there is a close connection between the jurisdiction and the act complained of -May help to state in contract which jurisdiction governs transaction -Online offer or service should state limitations of availability -Consumer Protection Act provides rights for anyone located in the province at the time of transaction -Foreign judgments may be hard to enforce, but it's dangerous to ignore them as judgments can be enforced in other jurisdictions. ie if you dont show up for hearing, you look guilty. |
|
|
Jurisdiction (long arm-statutes) |
-May allow jurisdiction even when no resident is involved -Can be sued where not even aware of the laws -Punish people outside of your borders* |
|
|
Business Transaction over Internet
|
- Domain name is a unique address, leading to many conflicts: -Companies in different locations want same name -Cybersquatters -Arbitration processes exist to deal with domain name disputes
Arbitration: -Bodies responsible for registration of domain names (eg. Canadian Internet Registration Authority) set policy for arbitration -For Canadian domain names: bodies like British Columbia International Commercial Arbitration Centre and Resolution Canada Inc. Offer arbitration services -World Intellectual Property Organization (WIPO) is largest arbitration service in the world
|
|
|
Business Transaction over Internet (Cyber squatting) |
- Both a legal and internet term. - Sitting on domain names with the hope of making a profit on it at a later date by selling it -Trademarks still apply. Trademark law superseeds domain name law. |
|
|
Torts |
-Defamation (untrue statement that causes harm) is the most common internet tort -Widespread distribution and uncertain jurisdiction make internet cases unique -Person and employer may be liable -ISP may be liable if it fails to remove or block offending messages when required by court
|
|
|
Online Contracts |
-Legal status of internet transactions determined by contract law -Written copies of online transactions can be altered -Particularly a problem when Statute of Frauds requires written, signed contract |
|
|
Online Contracts (Consensus) |
-Provinces enacted statutes based on the federal Uniform Electronic Commerce Act guidelines to recognize electronic documents and signatures -Satisfy legal requirements for written, signed documents -Differences among provinces -Does not apply to all documents
-Business may state that law of a specified jurisdiction will apply to transactions -Clicking 'I Accept' creates consensus -Offer accepted and contract formed when and where offeror learns of acceptance -Message sent when 'Send' is hit -Message received when it arrives on recipient's computer (even if never read)
|
|
|
Online Contracts (Capacity) |
-Difficult to know if other party has capacity to enter into contract (insanity, intoxication, etc) -Parties need more information than simply what appears on website -Federal government had guidelines for development, implementation, and use of authentication products and services in Canada
ELECTRONIC SIGNATURE - A way to ensure capacity via online contract to ensure the identity of the party |
|
|
Online Contracts (Legality) |
-Illegal activities are widespread on the internet -Sales of Goods Act and consumer protection legislation theoretically apply, but fraudulent scams are common -Some avoid rules in specific jurisdictions by moving business -Victims of scams may have little recourse when perpetrator is in another country or on another country |
|
|
Online Contracts (Payment Online) |
-Online payment difficult to secure -Services like PayPal may help customer get what was paid for or provide remedy in dispute -Even foolproof methods may be overcome by scam artists |
|
|
Online Contracts (Jurisdiction) |
-Legality varies by jurisdiction -To convince court that it has jurisdiction, plaintiff must show defendant was targeting the location where plaintiff resides (ie Canadian guy specifically selling marryjay seeds to US resident) -Courts may determine matter is not closely enough connected -Parties should specify what law applies and what court has jurisdiction |
|
|
Alternate Dispute Resolution |
-Problem can be avoided by including arbitration clause -Arbitration is a valuable tool for ecommerce disputes -Consumer protection legislation may make terms for mandatory arbitration invalid -Many organizations facilitate arbitration of disputes
-Arbitration is often the best way to seek a resolution -Online dispute resolutions are now available for electronic transactions -Examples include: The National Arbitration Forum. -There are also services for negotiation and mediation |
|
|
Regulating the Internet |
-Little effective regulation of the Internet. -Government interested in regulation of taxes -Issue of privacy arises if govt demands access to certain business records |
|
|
International Business Transaction |
-No international court to litigate private matters -International dispute resolution mechanisms only address disputes between sovereign nations -eg, Internation Court of Justice, and World Trade Organization
Many forms of international business: -Import and export goods (most common) -Protection of intellectual Property -Provisions and acquisition of services (eg call centers)
--Considerations for international Businesses: -Properly prepared contracts are vital -Parties must comply with govt regulations in both countries, -Steps must be taken to ensure efficient, cost effective, and favorable resolution of disputes |
|
|
International Business Transaction (Grey Market) |
-Involves importing materials from another jurisdiction in violation of a local distributor's exclusive right to distribute the product |
|
|
Contracts |
-Know who you are contracting with -Acquire services of professional specializing in law of jurisdiction involved -Recognize certain terms in a contract may be involved in a specific jurisdiction
-Contracts should specify: -All obligations and exceptions -Any related Assumptions -Dispute Mechanism (other than the courts) -Law that will apply -Court that will have jurisdiction -Any financial reporting requirements
|
|
|
Contracts (Financial Reporting) |
-Another important provision to include in such contracts is a method to account for profits or royalties. -Usually includes what records need to be kept by your foreign partner |
|
|
Contracts (Foreign Ownership) |
-Foreign ownership is likely to involve incorporation. -FO may be restricted, creating need for contractual relationships with local residents -Supplementary standard form contracts may be required, depending on nature of transactions -eg. bills of lading, letters of credit, insurance
|
|
|
Contracts (Specialty Contracts) |
-Depending on the nature of contract, additional specialized contracts may be involved. Example: -Bill of Lading (Rights and Responsibilities when a 3rd party is shipping), -A Letter of Credit (To ensure selling party is paid when buying party is satisfied, and -insurance (to cover risks of the transaction). -Govt of both parties often require customs declarations and invoices another other information regarding the transaction |
|
|
Dispute Resolution |
-Dispute resolutions often involve Arbitration, Mediation, and Negotiation. -Due to expensive and risk of litigation, arbitration clauses are usually set out in the contract. -Arbitration usually involves creating a private court designating a judge and the power the court has to resolve the disputes arising between them. -Advantages: Can select an arbitrator with special skills related to the contract, reduce risk, respecting mutal obligations and rights, and minimizing costs -Disadvantages: Used to be difficulty in enforcing the reward |
|
|
Litigation and Jurisdiction |
-Court -When dispute involves interests in more than one country, appropriate jurisdiction must be determined -Right of course to hear case may be challenged by application for order of forum non convenienves -Stated choice of law or jurisdiction can be overruled
-Factors determining Jurisdiction: -Where contract formed? -Where was it performed? -Where do parties and witnesses reside? -Where did problem occur? -Where are goods or property located? -Does the choice by either party benefit the stronger? -Which jurisdiction is most closely connected? |
|
|
Litigation and Jurisdiction (What Court?) |
-Some jurisdictions are passing legislation to apply "territorial competence" test to determine court jurisdiction -Follows supreme court of Canada decision -Simplifies process of determining when local court has jurisdiction -Can override contract terms
-BC court have territorial competence or jurisdiction where there is close connection between province and case facts or where one of three conditions is met -Defendant has agreed court will have jurisdiction -Defendant has submitted to the jurisdiction -Defendant is ordinarily resident in B.C.
|
|
|
Litigation and Jurisdiction (Enforcement) |
-May be difficult to enforce judgment in another jurisdiction (Where losing party has assets) -Order by court in one jurisdiction is effective in another jurisdiction only if course there adopts it -Often a problem with foreign jurisdictions, especially developing countries
-Some conventions provide for reciprocating enforcement -If no reciprocating enforcement agreement, person wanting to enforce order must sue on the judgment in the other jurisdiction -Process can be long, complicated and expensive -Often easier to enforce arbitration reward
|
|
|
Litigation and Jurisdiction (Defenses) |
-Many defenses may be raised to prevent enforcement of foreign judgment - examples: -Problem with process -Differences in laws -Courts in other jurisdictions are often more likely to enforce arbitration awards |
|
|
Government Regulations and Treaties (International Treaties) |
-Canada is party to many international treaties and conventions affecting business -International treaties encourage free trade by reducing or eliminating tariffs and duties -For business transactions affected by international treaties, professional advise is recommended
GATT (General Agreement on Tariffs and Trade) -Agreement to promote fair trade, encourages balanced competition and prohibit or control abusive practics -Reduced Trade Barriers -Tried to balance trade routes -Tried to prevent dumping
-MOST FAVORED NATIONS STATUS - GATT -Required that a member grant all other members the same tariff advantage as the lowest tariff they charged on a similar good -Required imported goods from member nations to be treated same as domestic goods
WTO - World Trade Organization -Expands on GATT objectives -Includes a dispute resolution process -Includes services and intellectual property (as well as goods) -Now as 153 member countries |
|
|
Government Regulations and Treaties (Continental Treaties) |
-NAFTA North American Free Trade Agreement -Promotes easier trade between Canada, the United States, and Mexico -Expands on the WTO agreement -Most duties and tariffs reduced or eliminated -Includes environmental protection provisions, labor standards, and dispute resolution mechanisms -Movement to include other countries
|
|
|
Canadian Regulations (Export) |
Exports: -Canada imposes few restrictions on exports -Controls related to security, money, laundering and tax avoidance -Export and Import Permits Act -Allows federal government to restrict certain exports to specific nations (and require permit)
-Other statutes regulate specific goods and practices -Canadian government provides support to exporters: -Trade missions -Export Development Corporation
-DUMPING |
|
|
Canadian Regulations (Imports) |
Imports -Imports to Canada regulated primarily through Customs Act -Canadian Border Service Agency (CBSA) enforces regulation -Special Import Measures Act - Special duties are imposed to overcome dumping -Excise Act - Creates special procedures requiring licencing for import of beer, wine and spirits
-Restriction on imports from certain countries -Restriction on imports of dangerous, hazardous, and environmentally sensitive goods -Businesses that import need to determine duties and permits required for specific transactions |
|
|
Extraterritorial Reach |
-Some foreign governments attempt to apply their regulations beyond their borders -eg US Patriot Act -eg US legislation designed to punish those from other countries doing business with Cuba -Canadian retaliatory legislation generally ineffective |
