out of remote sensing activities are
regulated.
TOWARDS A PRIVATE REMOTE
SENSING ORDER,
A NECESSARY LEAP
By Jordi SANDALINAS (Lawyer, LL.M., PhD
Candidate, 2012 Toulouse Space Show
Award Winner, Sirius Research Assistant)
SIRIUS (Space Institute for Research on
Innovative Uses of Satellites)1, University
of Toulouse, F-31000 Toulouse.
The present note addresses this
issue, starting from the positioning of
several academics. It argues how new
forms of contract practices are suggesting
the birth of a legislative leap capable of
granting security to space end users.
Issues related to contract clauses
such as the ones referring to the
competent court will be highlighted as an
example showing how interesting would
be, if an instrument related to private
commerce in the field of satellite imagery
and data supply would be into force at
the present time.
1. THEORETICAL APPROACH.
Abstract/Summary. The enactment of a
binding private commercial remote
sensing legal instrument constitutes a
paradigm that has been announced many
times by academics and practitioners as a
possibility, but never encountered.
Not only the latest technological
developments in the satellite industry, but
the most up to date satellite private
commercial practices as far as satellite
imagery and data is concerned, indicate
that an effort shall be made in order to
draft a global body embracing, if not
both,
- an
international
public
convention ; and,
- a private commercial code,
where at least the basic topics in the field
of satellite and data commerce stemming
1
SIRIUS is an academic chair between the
University Toulouse1-Capitole and the Toulouse
Business School. It is sponsored by CNES, Airbus
Defence and Space and Thalès Alenia Space.
One
could
contemplate
a
paradigm stemming out of the existing
academic positions alluding and driving
satellite imagery and data commerce
agreements related to commercial
satellite data and image transmission
capable of unifying new technology
trends. This challenge could be
accomplished from a private perspective
if certain contract clauses were effectively
enshrined in a binding law instrument.
The possibility of integration and
interaction between legal regimes and
different law instruments has proved that
a theory referring to a “uniform contract
system” is not only desirable, but possible
in order to prevent a “rockslide” of law
proceedings brought before national
courts.
Therefore, the here-in-below
perspective regarding a uniform private
code featuring build-in parameters could
enhance many commercial possibilities.
Indeed, this is not the first time
that a practitioner suggests a new order
concerning remote sensing commercial
trends. And this is not the first academic
perspective noticing tendencies in the
opposite direction. The debate was
around for some time carried by
reputable experts such as Wulf von Kries
and Jose Monserrat Filho. Even though a
potential amendment of the 1986 United
Nations Principles of Remote Sensing2
(UNPRS) could have been desirable, it is
not enough, bearing in mind that the
UNPRS does not have a sufficient binding
effect since it is a Resolution in nature3.
In that sense, Feinaeugle refers to
a “tailor-made solution”4 due to the fact
that there might be the opposing interest
of a sensed State towards a trade related
initiative throughout the General
Agreement on Trade in Services or GATS5.
2
Principles Relating to Remote Sensing of the
Earth from Outer Space, United Nations, Treaties
and Principles on Outer Space, adopted on 3
December 1986 (resolution 41/65), Sales No.
E.02.I.20, ISBN 92-1-100900-6, Hereinafter
UNPRS.
3
Von der Dunk, Frans, United Nations Principles
on Remote Sensing and the User, Earth
Observation Data Policy and Europe, edited by Ray
Harris (Lisse: A. A. Balkema, 2002), 29–40.
4
Feinaeugle, Clemens A, “The UN Principles on
Remote Sensing and the GATS: Conflicts or
Peaceful Coexistence, in: Proceedings of the 50th
Colloquium on the Law of Outer Space”, 369.
5
General Agreement on Trade in Services, Apr. 15,
1994, Marrakesh Agreement Establishing the
World Trade Organization, Annex 1A, The Legal
Texts: The Results of the Uruguay Round of
Multilateral Trade Negotiations 284 (1999), 1869
U.N.T.S. 183, 33 I.L.M. 1167 (1994) [hereinafter
GATS].
https://treaties.un.org/pages/UNTSOnline.aspx?id
=1 (Accessed on 23/04/2015).
Regardless, other authors and
academics such as Jose Monserrat Filho6
go beyond that idea by stating that a
brand new Remote Sensing Convention
could be a valid solution to that
paradigm.
Moreover, Montserrat refers that
the 1986 principles became a “pale and
impotent reference for such a vital
activity all over the world”7. Hence, the
UNPRS as a law instrument has been
overwhelmed by the technologically
complex reality of current practice of
remote sensing.
Therefore the lack of an
international law instrument as far as
private commercial satellite imagery and
data is concerned is a gap that must be
filled in the field of Space Law8.
Despite the fact that the creation
of an effective convention on remote
sensing9 is of great importance, other
academics such as Von Kries prefer not to
fall into that initiative10, considering that
it is not entirely crucial.
6
Monserrat Filho, Jose, “A remote sensing
convention for the advancement of Space Law,
2003 Proceedings of the 46th Colloquium on the
Law of Outer Space. IAC-03-IISL.1.16, page 63 et
seq.
7
Monserrat Filho, Jose, Op Cit, page 63.
8
Monserrat Filho, Jose, Op Cit, page 63.
9
Moreover, Monserrat Filho literally states that “A
convention on remote sensing is needed; because
it that could regulate the following previsibility,
regularity, equity for remote sensing activities,
freedom of remote sensing from anywhere in the
Earth and freedom of selling remote sensing data.
(liability)”
10
Monserrat Filho, Jose, Op. Cit, page 63.
2. RELEVANT INDICATORS
Certain satellite imagery contracts
aiming at end-users, do refer to the
possibility of settling contractual disputes
before the Chamber of Commerce of the
place where the satellite company is
domiciled. In that sense, UN formal
intergovernmental structures provide for
a proper dispute settlement system
through mediation and arbitration which
help to envision the possibility of
enforcement either from the side of the
satellite company but also from the end
user perspective.
The 1958 New York Arbitration
Convention11 enables award recognition
and enforcement when needed in case
there is a failure of compliance of that
award. However, agreements reached
through mediation only constitute solid
evidence to be claimed before courts.
Again, a possible solution stems
from the already existing precedent of
parallel positioning in this respect, but
gives also a new turn to the present
academic and legislative situation by
providing for a real commerce evolution
and due effectiveness.
In 2000 Wulf von Kries12 stated
that even though UNPRS do not deal with
military or intelligence remote sensing
pursuits, that did not seem to refuse the
idea of a global instrument bearing in
11
1958 Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (New York,
1958).
http://www.uncitral.org/uncitral/en/uncitral_texts
/arbitration/NYConvention.html (Accessed on
24/04/2015) .
12
Von Kries, Wulf, “Towards a new remote sensing
order?” in Space Policy Journal num 16, 163 et
seq.
mind that, back when the UN Principles
on Remote Sensing Resolution was
passed, Civil US initiatives already existed
such as the US Landsat System13.
Regardless, by the time when
Outer Space Treaty (OST)14 entered into
force, civil and commercial satellites did
not operate back then, only military
missions where currently active. Even in
2000, Von Kries referred to an
unexpected growth of the commercial
space industry and, moreover, he stated
that its dramatic development was not
expected when the UNPRS were
negotiated15.
In fact, as far as considering
Internet as the main commercial platform
or place of trade or service deliverance
this idea was not even taken into account
even though Von Kries already described
Internet as an “ideal distribution path”.
Therefore, even though Von Kries
distinguished still between military,
public (with the exception of Digital
Globe16 as stated by Prof Von der Dunk)
and commercial remote-sensing regimes,
13
Landsat Systems, Remote Sensing Online
Resources Online Journal of Space Communication
An
International
Electronic
Journal,
http://spacejournal.ohio.edu/issue3/remote_reso
urces.html, (Accessed on 24/04/2015).
14
Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies,
United Nations, Treaties and Principles on Outer
Space, (General Assembly resolution 2222 (XXI),
annex)—adopted on 19 December 1966, opened
for signature on 27 January 1967, entered into
force on 10 October 1967. UNITED NATIONS
PUBLICATION, Sales No. E.02.I.20, ISBN 92-1100900-6.
15
Von Kries, Wulf, Op Cit,165.
16
Von der Dunk, Frans in Von der Dunk, Frans and
Tronchetti, Fabio, “Handbook of Space Law”
(2015), Edward Edgar Publishing, page 859.
he proved that this topic is not an
idealistic legal or commercial theory but a
necessary effort that will allow market
businesses and initiatives to grow and
develop faster.
sensing new inventions and techniques is
concerned, a commercial remote-sensing
hybrid form of contracts owning a deep
technological conception deserve a close
look and a concrete regulatory effort.
Von Kries states that UNPRS and
Resolution 40 concerning the World
Meteorological Organization (WMO)
constitute a valid mirror where to look
at17 in order to draw an image where
satellite remote-sensing commercial and
legal evolution is seen. Therefore, turning
satellite data and imagery commerce into
a potential an effective tool is an effort
worth to make18.
As previously referred, academics
such as Monserrat Filho19 raised the
debate of an International Convention as
a regulatory effort as a reaction against a
regulatory scenario where lege lata not
so many solutions were provided.
Montserrat Filho even referred20 to the
reason why an International Convention
on Remote Sensing does not exist: from
the point of view of the United States and
their allies it was not necessary because
the current framework already “met the
needs” of the industry, therefore no
further legislative efforts were supposed
to be done21.
Even though Von Kries prefers to
sit on the idea that a uniform remote
sensing order is impossible to conceive,
we could rather think of a constant
evolving uniform customary framework.
Consequently, a legal initiative allowing
commercial operators to agree upon
certain clauses instead of “looking
around” for the perfect contract would be
desirable bearing in mind that lege
ferenda the debate is far from over.
Montserrat Filho did not agree
with Von Kries as previously insisted for
many reasons, most of them triggered
the idea that a solution to this debate
was really needed.
19
Monserrat Filho, Jose, Op Cit, page 63 et seq.
Monserrat Filho, Jose, in, Why Isn’t There an
International Convention on Remote Sensing?,
Work presented at the" Seminar on Remote
Sensing and Space Law" , at the X Brazilian
Symposium on Remote Sensing, sponsored by the
Brazilian Institute of Space Research (INPE) and by
the Latin American Society on Remote Sensing
and Space Information Systems (SELPER), at Foz
do Iguazu, Brazil, from 21 to 26 April, 2001.
Revista Brasileira de Direito Aeroespacial.
http://www.sbda.org.br/revista/Anterior/1718.ht
m#1 (Accessed on 27/04/2015).
21
In fact, as Filho literally states that Stephen
Mathias, Assisting Legal Consultant for U.N Affairs,
from the US State Department, was transparent
when communicating that "First, remote sensing
satellites operators are free to collect data from
anywhere in the Earth, at any time. Second, these
data may be publicly offered on a nondiscriminatory basis and on reasonable costs."
20
3. “UBI
BEYOND.
TECHNOLOGY, IBI
JUS”
AND
One could believe that the Roman
ubi societas ibi jus principle has an extra
guest shaped in the form of satellite
technology practice among other assets.
In this sense, it is law that must adapt to
new technological trends and practices
such as satellite commercial applications
but not vice-versa.
Therefore, as far as remote17
18
Von Kries, Wulf, Op Cit,165.
Von Kries, Wulf, Op Cit,165.
Bearing in mind that the articles
written by Von Kries and Filho were
published back in the years 2000 and
2003 respectively, there is a huge road
ahead of us that is undeniable because of
the dramatic evolution of satellite
internet commercial strategies and the
development of companies such as
Digital Globe or Spot Image among many
others.
If the UNPRS were hardly capable
to embrace all private commercial
activities in the field of remote-sensing
back in 2003, actually in 2015 UNPRS
would only constitute a reference,
nothing more. Thus, we urgently need a
deep handle to hold on and that is a
commercial set of private rules capable of
consolidating and harmonizing earth
observation market strategies without
the risk of hampering or restraining the
market.
4. SATELLITE PRIVATE COMMERCE WITHIN
THE OUTER SPACE TREATY AND THE WTO
FRAMEWORK
As far as satellite commercial
issues in the field of Earth Observation is
concerned, the Outer Space Treaty (OST)
establishes a narrower field of protection
regarding commercial remote sensing
image and data due to the non-binding
nature of the United Nations Principles on
Remote Sensing upon States22. Thus the
“main” Space legal instrument stays on its
own as it seemed to happen. Regardless,
OST is considered an international
22
Von der Dunk, Frans, United Nations Principles
on Remote Sensing and the User, Earth
Observation Data Policy and Europe, edited by Ray
Harris (Lisse: A. A. Balkema, 2002), 29–40.
treaty23 with binding structure and
provisions24.
Article 26 of the Vienna
Convention on the Law of Treaties25
fosters the duty of observation of
regulatory measures of the treaties
understood as pacta sunt servanda, that
is to say, the obligation to perform its
provisions in terms of good faith26 with
no possibility to bring internal law as a
reason for failure of compliance27 of such
regulatory measures.
The United Nations Principles on
Remote Sensing is considered as “special”
from an international perspective
nevertheless since it is constituted in the
shape of a “Resolution” of the United
Nations, therefore, this instrument does
not have a binding nature28 unlike Outer
Space Treaty which happens to be the
basic and the core of international space
law.
The Outer Space Treaty is
considered an international legal
instrument with a binding regulatory
structure that has entered into force and
it is applicable to all activities of States as
far as exploration and use of outer space,
without any aim of improvement as far as
environmental issues are concerned29,
but with the intention of not preventing
remote sensing initiatives for commercial
uses of outer space at all. Regardless,
private satellite imagery and data
23
Feinaeugle, Clemens A, Op. Cit, 369.
Feinaeugle, Clemens A, Op. Cit, 373
25
Vienna Convention on the Law of Treaties,
United Nations Treaty Series, Vol 1155 I - 18232,
339.
26
Ibidem, 339.
27
Art. 27, Vienna Convention on the Law of
Treaties, Lex Cit, 339.
28
Von der Dunk, Frans, Op. Cit, 29.
29
Feinaeugle, Clemens A, Op. Cit, 374.
24
commerce deserve an international
instrument or a European Directive on its
own.
Consequently, its binding nature
relies only in case state parties agree30 to
have binding effects in the concrete
agreement or most adequate form as
signed between them but there are no
international control mechanisms as
previously stated when referring to the
lack of enforcing measures as prevented
in the OST.
However, OST does not have any
concrete reference to the term “remote
sensing” nor it does have any reference
to “earth observation”, therefore OST
should offer other legal solutions that
must be encountered in order to find a
commercial trend underneath the legal
structure of the OST.
One important question that must
be addressed and dealt from a legal point
of view consists of whether Art IX OST
could provide for certain clues to deal
with potential cases as technology has
actually provided for new clues; one of
these clues is the notion of
“corresponding interests of other state
parties to the OST”.
Effectively, since OST does not
show enforcement tools as if it was a
complete framework, lege ferenda,
another framework such as the one
provided
by
the
World
Trade
31
Organization (WTO) either related to
30
Feinaeugle, Clemens A, Op. Cit, 373.
WTO Agreement: Marrakesh Agreement
Establishing the World Trade Organization, Apr. 15,
1994, The Legal Texts: The Results of the Uruguay
Round of Multilateral Trade Negotiations 4 (1999),
1867 U.N.T.S. 154, 33 I.L.M. 1144 (1994)
[hereinafter Marrakesh Agreement or WTO
31
trade and tariffs or to services could
perform that “assessment” task on an
international level filling any potential
existing gaps, stepping aside of European
Policy and Legal issues, which should be
studied in order to provide for an
effective manner or way to understand
the
underlying
base
sustaining
commercial remote sensing imagery and
data activities as an applicable law or
regulatory framework.
Feinaugle in this regard, refers to
the lack of international control
mechanisms in the same direction as
Wolfrum32 when referring to certain
issues regarding the Internationalization
of Common Spaces Outside National
Jurisdiction.
The WTO promotes trade opening
and constitutes a forum where trade
agreements are negotiated and disputes
are settled. WTO came into full shape
under the Doha Development Agenda
fostered in 2001 and triggered by the
success of the negotiations under the
Uruguay Round and previously named
after the General Agreement on Tariffs
and Trade33 (GATT)34. WTO framework is
not an international subject of law
Agreement].
32
Wolfrum, Rüdiger, Internationalisierung
staatsfreier Räume, Springer, Berlin et al.,
1984), 269
33
General Agreement on Tariffs and Trade 1994,
Apr. 15, 1994, Marrakesh Agreement Establishing
the World Trade Organization, Annex 1A, The Legal
Texts: The Results of the Uruguay Round of
Multilateral Trade Negotiations 17 (1999), 1867
U.N.T.S. 187, 33 I.L.M. 1153 (1994) [hereinafter
GATT].
https://treaties.un.org/pages/UNTSOnline.aspx?id
=1 (as of 23/04/2015).
34
World Trade Organization, Understanding the
WTO,
https://www.wto.org/english/thewto_e/whatis_e
/who_we_are_e.htm (Accessed on 18/04/2015)
constituting a United Nations (UN)
specialized agency35 despite its strong
connections with the UN36.
solid approach from a legal point of view.
As stated by Böhmelt and
even though the WTO trade law
system does not contemplate a concrete
enforcement mechanism40 and moreover,
since there is a reasonable believing in
the self-implementation41 capacity of
trade policy realignment of the States,
there is a chance to use other methods
when there is a lack of compliance with
the penal ruling from the State side such
as retributive justice in the form of trade
sanctions to force implementation of the
panel ruling. However, this mechanism is
just one small side of what the current
situation needs.
Spilker39,
The only issue to address is which
are the satellite entities directly affected
by WTO rules. This doubt is solved when
referring to the notion of trade
mechanisms
among
States
and,
moreover,
the
so-called
Dispute
Settlement Mechanisms (DSM)37 in the
form of sanctions as disciplinary
measures when States fail to comply the
dispute settlement solution provided by
the WTO dispute settlement system.
Therefore, since WTO rules are more
State-orientated, commerce related to
private satellite company products is not
regulated.
WTO contain useful tools for
satellite commercial practice though such
as the so-called DSM. In this regard, if a
Member understands that another
Member is not complying with the WTO
trade law instruments and decides to
bring proceedings under the auspices of
the WTO system of dispute solutions, the
panel ruling38 assist the complainant by
rendering a decision stating which of the
litigants has a more rightful and more
35
World Trade Organization, Work with Other
International Organizations,
https://www.wto.org/english/thewto_e/coher_e/
wto_un_e.htm, (Accessed on 18/04/2015).
36
In this regard consider reading the
“Arrangements for Effective Cooperation with
other Intergovernmental Organizations-Relations
between the WTO and the United Nations” signed
on 15 November 1995 constitute a valid legal
instrument for further research.
37
Böhmelt, Tobias and Spilker, Gabriele, in: The
WTO Dispute Settlement Mechanism –
Enforcement, State Power, and Dispute
Recurrence, Swiss National Center of Competence
in Research, Working Paper No 2013/07, May
2013, page 2.
38
Ibidem ut supra.
In the present scenario doctrine
aligns when referring to Bown reliance
theory and work regarding selfenforcement trade42 and the capacity of
developed countries to rely on the
achievement of GATT/WTO dispute
settlement mechanisms43. That capacity
should be maintained for satellite
commercial product supply as well.
The
main
basic
principles
sustaining the WTO framework are the
so-called Most Favored Nation and the
National Treatment. These principles
need to be taken into serious
consideration in order to make a
comparative legal effort with the
principles provided by the OST from an
39
Ibidem ut supra.
Ibidem ut supra.
41
Ibidem ut supra.
42
Bown, Chad, Self-Enforcing Trade: Developing
Countries and WTO Dispute Settlement.
Washington DC: Brookings Institution Press, 2009.
43
Bown, Chad, On the Economic Success of
GATT/WTO Dispute Settlement. The Review of
Economics and Statistics 86 (3), 2004, p 811 et
seq.
40
enforcement capacity point of view.
Such a comparison would enable
the practitioner to understand the
coexistence of different international law
instruments and to reason how, if not
both, OST or the WTO framework should
apply to certain remote sensing
commercial practices. However, a full
binding law instrument is needed.
OST and WTP have a binding
effect a priori and seem to promote
equality of treatment under a fluent and
liberal market scenario.
OST may apply to certain legal
issues while WTO legal instruments may
or should enter if or when OST is not
capable of providing a proper answer
such as the enforceable strength of an
agreement subject to certain contractual
clauses preventing certain situations that
would need a concrete answer.
Therefore, these initiatives should
aim to smooth the legal implementation
and applicability of commercial space law
based and centered on remote sensing
product technologies served either as a
product saved on a data storage related
device or as a service44 for example.
5. ISSUES RELATED TO SATELLITE IMAGERY
ONLINE CONTRACTS.
New types of online contracts
which require an answer from legal
practitioners have appeared: contracts
such as the so-called click-wrap, shrinkwrap and browse-wrap agreements
44
Von der Dunk, Frans, in Von der Dunk, Frans and
Tronchetti, Fabio, Handbook of Space Law, op. Cit
Page 857.
should be carefully studied due to its
complexity. In that sense, the European
Court of Justice (ECJ) does not question
click wrap agreements but on the
contrary.
By clicking on the “accept” button,
the End User agrees to the content of the
rules and terms governing the use of the
website being accessed. In this regard, in
Case named Jaouad El Majdoub v.
CarsOnTheWeb45, the object of the
transaction was an electric vehicle.
In the before mentioned case, the
seller tried to terminate the contract due
to the fact that there were some harms in
that vehicle. Being the buyer not happy
with that maneuver of the seller, brought
proceedings before the German Courts.
On the other hand, the seller claimed the
jurisdiction of the Belgian Courts of
Leuven.
These terms were not following
the 44/2001 Council Regulation46 referred
to the choice of forum. Moreover, it could
be seen as a legally defenseless position,
since the plaintiff was a consumer.
Council Regulation 44/2001 Article
15 refers to the courts of the domicile of
the consumer as the courts having
jurisdiction over other choices unless the
person claiming the court to be seized is
acting outside his personal scope. In this
regard, the ECJ in Content Services v
“Jaouad El Majdoub v CarsOnTheWeb.
Deutschland GmbH”, Judgment of the Court (Third
Chamber) of 21 May 2015, Case number = C322/14, Jaouad El Majdoub v. CarsOnTheWeb,
http://curia.europa.eu/juris/liste.jsf?&num=C322/14, (Accessed on September 5, 2015).
46
http://www.healdlaw.com/enforcing-click-wrapcontracts-2/ (Accessed on September 5, 2015).
45
Bundesarbeitskammer47 ruled according
to the before mention reasoning.
Hence, despite Cormier48 indicates
that due to the fact that click-wrap
agreements are already commonly
accepted, there should not be any further
need to analyze the legitimacy of clickwrap agreements anymore unless the
notion of consumer is compromised.
Certain courts may annul the
effect of these agreements according to
well and long established law bases, clickwrap agreements and its derived contract
online
forms
must
consolidate
themselves as a valid, practical and
excellent solution for online businesses if
certain measures are taken to avoid
unnecessary disputes.
There are also different types of
agreements that may put click-wrap
agreements into perspective such as
browse-wrap or shrink-wrap agreements.
These agreements have an electronic
source of revealing since they originate
from the activity of the user or the client.
Since, the so-called click-wrap
agreements depend upon the action of
the web-user, the so-called browse-wrap
agreements become effective just by the
“Content
Services
Limited
v
Bundesarbeitskammer”, Judgment of the Court of
(Third Chamber) 5 July 2012, Case C-49/11,
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELE
X:62011CJ0049:EN:HTML (Accessed on September
5, 2015).
48
Cormier Anderson, Rachel, “Enforcement of
Contractual Terms in Clickwrap Agreements”, 3
Shidler J. L. Com. & Tech. 11 (Feb. 14, 2007),
https://digital.law.washington.edu/dspacelaw/bitstream/handle/1773.1/395/vol3_no3_art11.
pdf?sequence=1, Accessed on September 4, 2015.
Page 9.
47
mere fact that the user to the website
continues using and operating the
website by accessing to its different
pages.
This type of electronic tacit
contract
may
cause
consumer
controversial issues and discussions since
it may be considered abusive from the
point of view of certain laws more
concerned with consumer protection
than liberalizing the market.
Thus, it would be important to
analyze these “newcomers” in the field of
electronic commercial transactions that
may be found among the terms or
conditions of a satellite image supplier.
Authors such as Gupta49 recall the
“Case Century 21”, a judgment rendered
by the Canadian Supreme Court, which
declared the possibility to enforce an
agreement by the mere act of using the
website beyond its very first time the
user “lands” on the website.
Certain websites refer to the fact
that users shall accept a cookie policy and
a popping “add-on” informing users that
the simple act of using the website
entails the acceptance of all the terms
and conditions featured therein.
As far as browse-wrap agreements
is concerned, there is a tacit behavior
performed by the user understood as a
consent itself. Thus, since there is no
need to click on a button appearing on
the screen of the computer, just browsing
49
Gupta, Indranath, “Are websites adequately
communicating terms and conditions link in a
browse-wrap agreement?”, European Journal for
Law and Technology, Vol. 3, No. 2, 201,
www.ejlt.org/article/view/47/239#sdendnote1anc,
Accessed on 22 Nov 2015.
around the website mean to agree with
to its terms and conditions.
Therefore, it is only a matter of
how the website transmits or notifies the
user about the link to the webpage
providing such conditions in order to
question the validity of “that” consent.
Even though Gupta stresses some
differences of the criteria adopted by the
European and the American Courts, both
Courts seem to understand the
importance of Internet as a new and
consolidated way of working and
commercialization between legal entities.
Lege lata Courts depart from the
proceeding when seized, however lege
ferenda are bound to follow the factum
given and provided by the parties to the
proceeding.
Indeed, Internal courts must
encounter a lack of a concrete framework
as far as click-wrap and browse-wrap
agreements is concerned, and, therefore
they must adapt to the existing laws
related
to
commerce,
consumer
protection and electronic transactions to
the controversy of the proceeding.
In that sense, Gupta states that
American courts are more straight
forwarded as far as the possibilities to
enforce browse-wrap agreements and
they have even released guidelines to
allow it by concreting the way web users
should be notified of the existence of this
tacit acceptance in case they continue to
use the website.
A worrying statement that
satellite online agreements refer to,
consists on the fact that end-users shall
affirm their condition as professionals,
that is to say, by leaving their condition as
consumers with important legal (and
potentially negative) consequences.
Council
Regulation
44/2001
addresses this issue indirectly and draws
the line in order to distinguish between
consumers and professionals the same
way creating an unnecessary border by
affecting professional entities acquiring
imagery that have no expertise in the
technical aspects of satellite imagery.
The latter statement stresses the
task of local courts to solve the
inconsistencies created by laws in this
regard.
Nevertheless, satellite contracts
such as the ones previously analyzed
refer to the jurisdiction or arbitration
clause indicating which court shall be
seized or which arbitration chamber shall
start proceedings when a claim has been
filed.
Jiao Xue50 in this sense, refers to
the court task on case-by-case solution
basis to solve matters related to shrinkwrap agreements.
Xue51 also goes a little bit further
in the analysis since he refers to the
enforceability of the judgments rendered
related to shrink-wrap agreements
providing examples of local German
courts, which have certain tradition in
these cases. In that sense, the so-called
"Schutzhüllenverträge" or shrink-wrap
50
Xue, Jiao, A Comparative Study of ShrinkWrap License, Journal of Politics and Law, June,
2009,
Vol
2,
No
2,
Page,
86,
http://ccsenet.org/journal/index.php/jpl/articl
e/viewFile/2310/2167, (Accessed on Sept 11,
2015).
51
Xue, Jiao, Op Cit, Page, 90.
agreements depend on a case by case
scenario.
Moreover judgments will decide
whether shrink-wrap agreements are
enforceable if they pass “two tests” as
stated by Xue52.
The first one refers to the fair
quality of the product as far as the
expectations from the user point of view
is concerned and, the second one consists
of the right to be reimbursed directly or
through an agile procedure in case that
product is damaged and presents defects
that hamper the use of that product to
the finality it was meant to.
6. CONCLUSIONS
Indeed, an important effort shall
be made in order to embrace in a single
private instrument some of the issues
previously highlighted.
The study of these issues related
to a theoretical implementation process
as far as EU Member States is concerned,
should be the next step to be analyzed in
while drafting a law instrument in the
form of Directive.
Nevertheless, at the moment this
paradigm seems far from happening from
a private commercial perspective due to
the fact that click-wrap, browse-wrap and
shrink-wrap agreements seem to be at a
very incipient level of consideration from
an international perspective.
Until then, internal courts or
internal arbitration chambers where the
satellite company supplying satellite
52
Xue, Jiao, Op Cit, Page, 90.
imagery and data is domiciled will be
deemed the right ones to be seized
unless issues regarding jurisdiction are
effectively regulated.
Therefore, another last question
remains
unanswered:
how
could
consumers located overseas deal with
such a situation?
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