The Influence of Digitalization on Regulating Precontractual Relations in Private International law

Abstract

Digitalization of public life has a qualitative impact on the establishment of cross-border contractual relations, on the one hand, simplifying the process of interaction between potential counterparties, on the other hand, raising the question of the suitability of traditional instruments as a basis for regulating cross-border relations complicated by the “digital element”. The main changes that “made” digitalization in the procedure of the conclusion of cross-border contracts are analyzed in the article. The ways of concluding online contracts using the “shrink-wrap”, “click-wrap” and “browse-wrap” methods are studied in detail; an appraisal is made of the conformity of the specified methods of concluding online contracts with the requirements of acts of the European Union in the field of electronic commerce and consumer protection; the approaches taken by US court practice are explored.The questions about the subject of the user agreement and the moment of its entry into force are raised in the article; a distinction is made between the practice of concluding traditional and online contracts at auctions and electronic platforms in terms of qualifying the action of a potential counterparty as having made an offer or just made an invitation to offer; attention is paid to the problem of the validity of online contracts concluded by minors, and the practice of applying the “doctrine of infancy”. The conclusion is made about the appearance in the conditions of digitalization of a new instrument for regulating cross-border pre-contractual and contractual relations — a user agreement. The user agreement is not limited to visitors of the site who have accepted its terms, but, the rules for using the website are applied to all users; and the “infancy doctrine” in order to invalidate an online contract may not be taken into account by the court if the minor takes advantage of the contract. In practice, the owners of the aggregator, acting under national and international law, relying on the principle of disposition and taking advantage of the autonomy of the will, dictate to potential participants of online transactions their rules for entering into and executing contracts, in effect, establishing a special trading regime. The user agreement in this case is often an array of documents that have a complex architecture and regulate various aspects of the relationship between the website operator providing access to it and users on the use of website services, ordering services and goods.