O.V. Sergeeva

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

2020. No. 3. P. 162–184 [issue contents]
Digitalization of public life has a qualitative impact on the establishment of cross-bordercontractual relations, on the one hand, simplifying the process of interaction betweenpotential counterparties, on the other hand, raising the question of the suitability oftraditional instruments as a basis for regulating cross-border relations complicated bythe “digital element”. The main changes that “made” digitalization in the procedure of theconclusion of cross-border contracts are analyzed in the article. The ways of concludingonline contracts using the “shrink-wrap”, “click-wrap” and “browse-wrap” methodsare studied in detail; an appraisal is made of the conformity of the specified methodsof concluding online contracts with the requirements of acts of the European Union inthe field of electronic commerce and consumer protection; the approaches taken by UScourt 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 betweenthe practice of concluding traditional and online contracts at auctions and electronicplatforms in terms of qualifying the action of a potential counterparty as having madean offer or just made an invitation to offer; attention is paid to the problem of the validityof online contracts concluded by minors, and the practice of applying the “doctrine ofinfancy”. The conclusion is made about the appearance in the conditions of digitalizationof a new instrument for regulating cross-border pre-contractual and contractualrelations — a user agreement. The user agreement is not limited to visitors of the sitewho 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 intoaccount by the court if the minor takes advantage of the contract. In practice, the ownersof the aggregator, acting under national and international law, relying on the principleof disposition and taking advantage of the autonomy of the will, dictate to potentialparticipants of online transactions their rules for entering into and executing contracts, ineffect, establishing a special trading regime. The user agreement in this case is often anarray of documents that have a complex architecture and regulate various aspects of therelationship between the website operator providing access to it and users on the use ofwebsite services, ordering services and goods.
For citation: Sergeeva O.V. (2020) The Influence of Digitalization on Regulation of Precontractual Pelations in Private International Law. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 162–184 (in Russian) DOI: 10.17323/2072-8166.2020.3.162.184
Citation: Sergeeva O. (2020) Vliyanie tsifrovizatsii na regulirovanie preddogovornykh otnosheniy v mezhdunarodnom chastnom prave [The Influence of Digitalization on Regulating Precontractual Relations in Private International law]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 162-184 (in Russian)
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