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1 J. Int'l Com. L. & Tech. 1 (2006)

handle is hein.journals/jcolate1 and id is 1 raw text is: Journal of International Commercial Law and Technology Towards a supranational Internet law' Dr Paul Przemyslaw Polanski University of Warsaw, Poland Abstract Internet commerce continues to flourish despite lack of predictable international legal framework. This article proposes the concept of autonomous Internet law based on the notion of Internet lex mercatoria. Although the idea of autonomous cyberspace law is not new, so far no theory of sources was proposed The present contribution offers such theory and briefly discusses them. Finally, the article discusses potential pros and cons of the proposed framework. KEYWORDS Cyberspace law, custom, general principles of Internet law, peer-to-peer networks, linking THE NEED FOR A SUPRANATIONAL SOLUTION As soon as the commercialisation of the Internet started, it became apparent that there is a need for uniform international law as the reliance on the traditional systems of conflict of norms or private international law brings an intolerable amount of uncertainty. The first problem is that the rules that decide which law applies usually depend upon the location of the party (Burnstein, 1996, p.81; Johnson and Post, May 1996), which may not always be possible to indicate. For instance, very often the law of the seller's place of business will be designated as a proper system for ascertaining parties' rights and obligations arising out of a contract. In case a virtual business did not indicate his geographical address, such rules might be impossible to apply. The second problem is that each domestic legal system has its own legal rules on international disputes, which decide whether a legal system of a plaintiff or a defender will apply. Therefore, a judge in one country may be forced to apply a law of another country, of which he or she has no actual knowledge. Furthermore, such legal system may have no proper rules for the Internet. In such case scenario, it would be difficult for any attorney to convince his client that he can be certain of the outcome of a dispute where another legal system than that where the court sits, was found applicable. Finally, since each country has its own conflict rules, a different legal system might be designated only as a result of the selection of a court. Therefore, one dispute being submitted to two courts established in two different countries, might lead to opposite verdicts. And even if one party would have won in his country, it might not be able to enforce a favourable judgment in another country. If one adds to this that each legal system considers some of its laws as having mandatory character, which means that they have to be applied by a judge even if another law was selected as applicable by virtue of conflict rules, this clearly shows that the existing system is inadequate for the Internet Age. As a result, some authors suggested that the Internet needs a supranational or an autonomous legal system (Johnson and Post, May 1996; Hardy, Summer 1994). The proposed concepts were inspiring but rather vague. For instance, some authors already in the 1990-ies have already noted the similarity of electronic commerce practices and the medieval Law Merchant (Perritt, 1997; Johnson and Post, May 1996; Post, October 1996; Hardy, Summer 1994) See also (Branscomb, May 1995) (Burnstein, 1996; Burnstein, 1998-2000; Reidenberg, February 1998). Recently, see (Michaels, 2005; Hardy, Summer 1994; Trakman, Summer 2003). Trotter Hardy, who was probably the first to notice the similarity, argued that the parallels of medieval trade with online commerce are strong because: Many people interact frequently over networks, but not always with the same people each time so that advance contractual relations are not always practical. Commercial transactions will more and more take place in cyberspace, and more and more those transactions will cross national boundaries and implicate different bodies of law. Speedy resolution of disputes will be as desirable as it was in the Middle Ages! The means of an informal court system are in place in the form of on-line discussion groups and electronic mail. A Law Cyberspace co-existing with existing laws would be an eminently practical and efficient way of handling commerce in the networked world. (Hardy, Summer 1994) 1 This article was published in Complex 4/2006 LSPI Conference proceedings. The article is based on the last chapter of the book that is expected to be released in 2006. Vol.1 Issue 1 2006

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