Fundamentals of IT Law: Public and Private International Law, Presentation

Facoltà di Economia "Giorgio Fuà"

Fundamentals of IT LAW: Public and private International Law Prof. Roberto Ruoppo www.univpm.it2

International Law Sources

International law sources (art. 38 ICJ Statute):

• Customs
• Treaties
• General principles of international law
• International decisions and scholars

. Soft law: non binding acts Why should we know the impact of Int'l Law on online relationships?3

International Law and Online Relationships

Why should we know the impact of Int'l Law on online relationships? . Because online relationships and contracts do not have any national border . Because there are some values arising from international law useful to understand the purpose of International and EU legal rules: e.g. protection of users4

International Law: Customs

Non-written rules arising out of consistent, long-standing practice (objective element: diuturnitas), and that nations have followed out of a sense of binding obligation (subjective element: opinio iuris). Objective element: diuturnitas, a long-standing practice observed by States for a long time

• What practice means? A wide range of act adopted by States (normative act, such as laws; domestic case-law; administrative acts; diplomatic acts; also treaties signed by States)
• Which States? Not on a quantitative basis; but a qualitative perspective should be adopted (representing most civil law and common law countries)5

International Law: Customs - Subjective Element

Subjective element: opinio iuris, countries have followed that practice out of a sense of binding obligation It can be proven by several elements: domestic provision; case-law6

International Law: Customs - Importance and Application

International customs are much more important than national customs: because of structural differences between domestic (in particular civil law systems) and international legal systems In some jurisdictions they are automatically part of the law (e.g. Italy, art. 10 Cost.); in other jurisdictions they must be enacted in legislation (e.g. Australia). In the US they form part of the law as long as there is no contradictory statute or treaty7

International Law: Customs - General Application

They are of general application, i.e. they address all the members of the international community (differently from treaties but analogously to general principles of international law).8

International Law: Customs - Examples

Examples of customs in international law . Territorial sovereignty: every State has the power to exercise its authoritative powers over its territory, including people and their goods (there are some limits, see Regeni case) . Prohibition of the use of force (art. 2, par. 4 UN Charter). There are only few exceptions: Security Council decisions; self-defense (art. 51 of UN Charter, unless acts are adopted by the UN Security Council) · States' immunity from other States' jurisdiction (unless fundamental rights are violated)x

International Treaties

9 International treaties Secundary International law from a theoretical point of view: they rely on a custom rule (pacta sunt servanda) Bilateral treaties (two States) vs multilateral treaties (more than 2 States) The 1969 Vienna Convention on the Law of Treaties is a "treaty on treaties": e.g. interpretation; reserves They have to be applied with preference when solving a dispute since they represent lex specialis: so from a practical perspective they have a primary role10

International Law: Soft Law

International Law: Soft law · UN General Assembly acts: - Declarations - Resolutions - Recommendations11

Public vs. Private International Law

From public ... to private International law · Public International law: rules governing States' relationships It has always been considered as "International community's legal framework", thus addressed mainly to States This is its main feature, even though today it is addressed to individuals too (e.g. see International Conventions on human rights, such as European Convention on human rights) . Private international law: rules concerning contractual relationships between natural persons or companies12

Private International Law: Definition

Private International Law · Legal rules concerning international private relationships . Private relationships: concerning private actors (natural persons and companies, e.g. contracts concluded with e- commerce platforms, such as Amazon) . International: relationships producing effects beyond national borders of one country Objective reason: contract with international effects Subjective reason: actors deriving from different countries · Indirect function of PIL: «conflict of lawl rules», their aim is to determine the national law applicable to the contract13

Private International Law: Indirect Function

Private International Law What does «indirect function» mean? . While national civil codes are aimed to rule the effects of a specific contract, providing their obligations and other aspects (direct function) . PIL is aimed to establish rules useful to determine the national law applicable to the contract (it is also called as «conflict of laws legal rules» since it is useful to solve those situations where different national rules aim to be applied)14

Private International Law: Legal Sources

Private International Law legal sources · Domestic rules: in Italy law no. 218/1995 · European Union Regulations or Directives: e.g. Regulation n. 593/2008 on the law applicable to international contracts (so called Rome I) · International treaties or conventions (e.g. Vienna Convention on sale of goods) · International principles: such as UNIDROIT Principles . They have indirect function: they are conflict of law rules15

UNIDROIT Principles of International Commercial Contracts

UNIDROIT Principles of International Commercial Contracts · UNIDROIT: It is an international organization established by the League of Nations (that became United Nations in 1945) in 1926 · Its seat is in Rome . Its goal is to adopt rules useful to uniform private law among States, in particular commercial law · UNIDROIT has provided a set of rules applicable for international contracts16

UNIDROIT Principles as Lex Contractus: First Theory

UNIDROIT Principles of International Commercial Contracts 1. UNIDROIT Principles as Lex Contractus: FIRST THEORY: Pursuant to the Preamble, parties may choose UNIDROIT Principles as the law applicable to their contract, alternatively to domestic law . Arbitrators will have to apply the Principles to settle the dispute · When parties choose domestic law, the Principles may still be used as a hermeneutic/supplementary tool17

UNIDROIT Principles as Lex Contractus: Second Theory

UNIDROIT Principles of International Commercial Contracts SECOND THEORY: Parties cannot choose UNIDROIT Principles as lex contractus . The Principles have not been negotiated by States. They are just an academic work · Neither EU Law (Rome | Regulation, n. 593/2008) nor Italian law explicitly permit such choice of law . Where parties choose UNIDROIT Principles, the choice is not effective and a national law shall be found: law determined through International private law provisions18

UNIDROIT Principles: Interpretation and Supplementation

UNIDROIT Principles of International Commercial Contracts UNIDROIT Principles as tools to interpret and supplement international conventions: International conventions (e.g. air transport, intellectual property, sale of moveables) shall not be interpreted according to domestic rules. They may be interpreted in accordance with the UNIDROIT Principles19

UNIDROIT Principles: Model for National Law-Makers

UNIDROIT Principles of International Commercial Contracts Unidroit Principles as a Model for National Law-Makers: . The Principles may perform the same function as Model Laws · They do not require ratification Unidroit Principles and the General Principles of Law: . The Principles may amount to the "general principles of law recognized by civilized nations" (art. 38 ICJ Statute) . This way, they may be applied not only to contracts between private parties, but also to contracts between States and mixed contracts20

UNIDROIT Principles and Lex Mercatoria

UNIDROIT Principles of International Commercial Contracts UNIDROIT Principles and Lex Mercatoria · The Principles are a gradual codification of Lex Mercatoria (e.g. trade customs), which may thus be less arbitrary and undetermined; . However, the Principles are a non-exhaustive source of LM; . The Principles are a partial codification of LM. Some topics are not covered; . Note that trade customs are non-written and dynamic LM, so even if they are codified (e.g. through the Principles), they may still change21

Lex Mercatoria: Historic Origins

Lex Mercatoria Historic Origins: . Historically, the law created by merchants for merchants without the mediation of state power (e.g. mercantile corporations' statutes mercantile customs, curiae mercatorum's case law).22

Lex Mercatoria: Sources

Lex Mercatoria The Sources of LM: Contract models, which may be established spontaneously (e.g. leasing and factoring): models created by business operators of a given country and then adopted by operators of different countries International trade customs, but some problems arise: · When does a behavior become well-established in order to create an international binding legal rule? · What is the content of this behavior and thus of this legal rule? ** An high degree of uncertainty can be recorded