Can’t I choose my own law and my own courts?

Many websites’ terms and conditions include a "choice of law" clause, i.e., a provision specifying that the law of a particular jurisdiction will apply to the enforcement of or to disputes relating to the terms and conditions. A typical provision might provide: While such provisions are common in website terms and conditions, it is not certain that they will be upheld in all contexts. Choice of law and venue clauses that are within terms and conditions that require a user to affirmatively indicate consent may be more readily enforceable than those which are in terms and conditions that are simply posted on the site. Even where express assent is obtained, however, such clauses may be void against public policy. [Find a U.S. example, such as Paypal] A French judicial opinion refused to enforce a provision contained in an internet service providers contract choosing [U.S.] law, on the grounds that it would have circumvented mandatory local laws protective of consumers. Complying with applicable laws versus staying local Does your ecommerce business need to comply with the laws of any jurisdiction where it has a customer? In theory, yes. Yet, because of the practical burdens assessing and complying with every conceivable local requirement, an ecommerce business may pay close attention primarily to the laws of jurisdictions in which it specifically targets consumers. Jurisdictions for which it has a specially-tailored version of its website, where it has conducted local advertising and promotional campaigns, and where it makes the most sales are the ones of greatest concern. If you determine not to incur any risk of being sued in another jurisdiction, then you may wish to avoid conducting business outside your local area. There is no definitive test to determine whether a business not has established a sufficient presence in a jurisdiction for it to be sued there, but the following basic principles offer some guidance: (i) limit the interactive features of your website to avoid collecting information from residents of a jurisdiction in which you would prefer not to be sued; (ii) don’t allow more than isolated sales to residents of a particular jurisdiction, as the greater the volume of sales within a particular jurisdiction, compared with the overall sales of the ecommerce business, the greater the chance the seller will be subject to being sued in that jurisdiction, (iii) don’t promote your site to residents of a particular jurisdiction by means of advertising in local publications or on websites that are regional in focus, and (iv) don't create a foreign-language version of your site or utilize a country-specific TLD, such as ".ca" (for Canada), unless you are willing to subject yourself to jurisdiction in that country.


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