Overview

The basic methodology for ascertaining the choice of law is to characterise the issue or question to fit into a category, to determine the connecting factor for that category, and then to apply the law indicated by that connecting factor. Just like what has been discussed in the applicable law for contractual obligations in the EU, the difference in determining the applicable law for online as opposed to offline commercial transactions only arises when transactions involve digitised goods or services with electronic delivery. Unlike the EC Directive on Electronic Commerce, the US has a special provision governing choice of law in a uniform commercial code “Uniform Computer Transactions Act” (UCITA). Unfortunately, the UCITA has not been widely adopted by the states of the US. Although the UCITA only applies to computer information transactions such as computer software, online databases, software access contracts or e-books involving licensing contracts, the choice of law provision of the UCITA can be learned from or adapted to determine the applicable law in general electronic contracting for the reason that the features of concluding contracts with products or services being transferred online will be identical to those of transacting computer information. In the absence of a uniform choice of law statute for electronic contractual obligations in the US, traditional uniform commercial laws, such as the Uniform Commercial Code (UCC) and the Second Restatement, still play a significant role in determining applicable law to contracts concluded and performed electronically.