Certain products, because of both their civilian and military purposes, may require an export license. For information you may contact Trade Export - Office of Bureau of Export Administration: (408) 748-7450. Sophisticated and high technology products, short supply items, technical information, and products that have defense, strategic, weapons development, proliferation, or law enforcement applications can be subject to export licenses. It is up to the exporter to determine whether the product requires a license Exporters should consult the Commerce Department's BXA at http://www.bxa.doc.gov and find out if the items or services they are planning to export are classified on the Commerce Control List (CCL). If a product appears on this list, it may require a license. In general, this list contains items controlled by the Export Administration Regulations (EAR) because they are considered to be dual use items.

Which national law will cover cross-border electronic transactions between a seller and a buyer?

The question of applicable law arises each time there is a cross-border transaction. Applicable law is the law that the parties to a contract can choose to govern the contract or the law that is applied when the parties have not made a choice of law. In general, a distinction is made between transactions concerning businesses only (business-to-business) and those concerning consumers. Where an agreement is entered into between a professional and a consumer (business-to-consumer), the parties involved, in choosing an applicable law, cannot depart from the public policy laws of the consumer's country (e.g., with regard to time of retraction, abusive clauses, etc.), which are meant to protect the consumer. The general principle is of the autonomy of the parties to a contract, which means that parties have the freedom to choose which law will govern their contract. This principle is recognized in most countries (with some notable exceptions, see for example Brazil's law introducing the civil code of Brazil of 1942, concerning conflicts of laws), as well as the Rome Convention of 19 June 1980, on the law applicable to contractual obligations. As a consequence, for purposes of legal certainty, parties to a contract are advised to specify which law will govern their transaction(s). If the parties have not specified which law will apply to a contract, then the jurisdiction (e.g., state court or arbitral tribunal) responsible for the case will have to decide which law is applicable. Each country has its own guiding rules with regard to choice of law, but, in general, two solutions are most commonly applied:  the first is where the applicable law will be the law of the country of the seller (the party who provides the performance which is characteristic of the contract); the second is where the applicable law is that of the place of the signing of the contract. Moreover, you should be aware that certain conventions or international rules lay down specific rules in relation to international transactions, such as:  the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 11 April 1980) and the UNIDROIT (International Institute for the Unification of Private Law) Principles of International Commercial Contracts, 1994. These and other such international texts can be chosen by parties to govern their contracts and therefore the disputes that could arise in the context of their contractual relations.

In case of a dispute, which court will have jurisdiction over a cross-border contract agreed upon electronically?

Jurisdiction raises the question of which national court or arbitral tribunal will hear the dispute. In the absence of a term in your contract conferring jurisdiction on a specific court or arbitration panel, (note: the validity of such a clause depends on national law; for example, in France such a clause is not valid between non-business parties unless the contract has an international dimension) a national court will decide if it has jurisdiction over the case in accordance with its own national rules of law. Therefore it is strongly recommended, for the sake of security and foreseeability, that you and the other party stipulate in your contract which court or arbitration panel will have jurisdiction over a dispute arising from your contract. The same recommendation is made regarding the applicable law for your contract; business parties are advised to stipulate clearly which law will apply to their contract in case of a dispute. In international business dealings, arbitration clauses are the usual practice, since they avoid submitting disputes to a state court or national rules of procedure that at least one of the two parties will not be acquainted with. Furthermore, arbitral awards can be recognized internationally: the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, ratified by some 120 States, facilitates the recognition of arbitral awards as if they were national court decisions. Arbitration may not always be necessary where countries are linked by treaties that define which courts have jurisdiction and facilitate the recognition of state court decisions. For example, in Europe, the Brussels Convention of 27 September 1968 and the Lugano Convention of 16 September 1988 provide that, in principle, the court which has jurisdiction is the court of the defendant's residence, the court of the country where the contract is performed, or the court of the country where the harmful event which is the subject of the dispute occurred; the Conventions also facilitate the recognition, in European Union countries, of court decisions. In most countries, however, such rules do not exist. Moreover, most countries still accord privileges to their own nationals to submit disputes to their national courts (in the absence of a clause in a contract referring to a state court or to arbitration). It should be noted that draft Convention on Jurisdiction and Foreign Judgments in civil and commercial matters is being studied by the Hague Conference of International Private Law (October 1999), and a European draft Regulation of 14 July 1999 concerning jurisdiction is being submitted to the European Council.

How can I ensure that an agreement made electronically is legally binding?

When parties enter into an electronic commercial contract, the contract is formed by one party making an offer and the other party accepting this offer. The exchange of consents will give legal effect to the contract without either party having to respect requirements of form, except in such situations where the law specifically requires that a contract be written in a specific form (e.g., for the sale of property, settlements, etc.), or where the national law requires a written document (e.g., for the sale of a business, maritime bills of lading, etc.). Nevertheless, for day-to-day transactions, the main legal problem concerns the question of evidence. The existence of a contract can be disputed if you do not have evidence of its formation. Thus, a simple electronic message which is not signed can be called into question. Consequently, a message representing an offer or the acceptance of an offer runs the risk of being considered as simply a beginning to written evidence and not complete documentary evidence. A vast legislative change is taking place on a global level, recognizing that writing in the electronic medium is the functional equivalent of traditional writing on paper. The legal effect of electronic records is recognized in Articles 6, 7, and 8 of UNCITRAL's Model Law on Electronic Commerce, which is the standard reference for countries wishing to adapt existing laws or create new laws to deal with electronic transactions. In practice, if you use an electronic medium (such as e-mail) during the process of contracting, it is wise to forestall potential problems of evidence by incorporating a reliable, recognized electronic signature into your electronic correspondence. This makes it possible to identify the parties as signatories of the contract so that they cannot later repudiate the contract on the basis that the agreement was not signed; then the integrity of the contract can be guaranteed. In case of doubt, it may also be wise to confirm the acceptance of an offer by sending a confirmation document by mail, such as an acknowledgment of receipt.

If a buyer accepts, online, my online offer for the sale of goods, are we then legally bound by a contract?

In countries with a common law system (e.g., the United Kingdom, Nigeria, India, New Zealand, etc.) when a seller offers products for sale, he is, as a rule, entitled to revoke his offer at any time before it is accepted by a buyer. This applies to online and offline offers for sale. In countries with a civil law system (e.g., Germany, France, Brazil, Indonesia, etc.), when a seller offers products for sale, he is bound to maintain his offer open (i.e., he cannot revoke his offer, so long as he has sufficient stocks of his products to meet any orders). This principle applies to online as well as offline offers for a sale. In view of the above, a potential buyer may wish to provide evidence of his/her order. The best means for him/her to do this are:  to electronically sign the order, to print a copy of the acceptance of his/her offer, or perhaps even store the exchanges electronically (e.g., by saving them in a folder or database). A crucial text for business-to-business transactions is Article 14 of the Vienna Convention on the International Sale of Goods of 1980, which defines the terms "offer" and "invitation to make offers," and specifies that an offer must be made to the persons concerned and "1)... constitutes an offer if it is sufficiently definite and indicates the intention of the offerer to be bound in the case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price. 2) A proposal other than one addressed to one or more specific persons is to be considered merely as an invitation to make offers, unless the contrary is clearly indicated by the person making the proposal. " On the basis of Article 14, a fundamental question arises as to whether an offer should be considered as binding where a seller makes a general offer (i.e., not to a specific person or group of persons) on his web site and a foreign buyer accepts the offer. With regard to this issue, the United Nations Center for the Facilitation of Procedures and Practices for Administration, Commerce, and Transport (UN/ CEFACT), in Article 3.2.1 of its "Electronic Commerce Agreement" (see Appendix VI), which was approved in March 2000, provides an answer which can be incorporated into contracts: "A message constitutes an offer if it includes a proposal for concluding a contract addressed to one or more specific persons which is sufficiently definite and indicates the intention of the sender of the offer to be bound in case of acceptance. A message made available electronically at large shall, unless otherwise stated therein, not constitute an offer".

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