Byte - International Chamber of Commerce to release model E-Terms (September 2004)

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The International Chamber of Commerce (ICC) promotes self-regulation as an effective way to regulate electronic transactions. They argue that legal disputes can generally be avoided as long as parties have an underlying contract that governs their ongoing electronic contractual relationship.

One of the ICC’s main arguments in support of a self regulatory approach to electronic transactions is that party autonomy, or the freedom of parties to choose who they contract with and on what terms, is best preserved when the final terms of the contract is left totally up to the parties. The ICC’s proposed regulatory scheme operates on the assumption that the parties themselves are always in the best position to look after their own interests, and it is their responsibility to ensure their interests are protected in the contract.

In order to assist businesses to effectively contract through electronic media the ICC is currently developing the E-terms 2004, a self-regulatory instrument that aims to eliminate problems relating to legal certainty in electronic contracts by providing users with a package of model clauses, checklists and guidelines.

E-terms 2004 will not be the ICC’s first attempt at providing self-regulatory mechanisms to assist international business. They have already released numerous voluntary self-regulatory guidance documents designed to help businesses overcome the legal uncertainties arising from international contracts. The range of ICC legal publications extends from model contracts (and the accompanying guidance documents) to business rules and model clauses.

According to the ICC, the E-terms 2004 will cover ‘medium-specific’ legal issues, not issues relating to the subject matter of the contract or reasons relating to why a party should contract with a particular party. To do so would violate the principle of party autonomy. The E-terms 2004 is expected to deal with the following issues:

  • Who is contracting?
  • When is the contract made?
  • Where is the contract made?
  • How is the contract made?

The E-terms 2004 will add to the ICC’s already extensive list of legal guidance documents for international business.


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