The Modern Travelling Merchant: Mobile Communication in International Contract Law

Contratto e impresa/Europa (2015), pp. 19-43 The use of mobile communication devices like mobile phones, smartphones, tablet computers or notebooks with access to the internet has become an everyday phenomenon in today’s business world. However, whenever mobile communications are used for purposes of contract formation, i.e. the mobile dispatch of offers or acceptances, the mobility of the communicating parties raises important difficulties for the application of traditional legal rules: The fact that messages transmitted via phone, e-mail or SMS can be dispatched and received at virtually any place on earth challenges the categories of private international law and international contract law, which are based on the (unspoken) assumption that parties communicate from their home country. The existing legal framework for cross-border contracts therefore hardly takes into account the possibility that parties may move across borders, and that the place of their communications may accordingly vary. The present article addresses the legal difficulties and uncertainties that cross-border mobile communication raises under international rules of law, covering both conflict of laws rules and substantive law rules. It elaborates on the traditional role of the place of communication in this context before scrutinizing how ‘mobility-friendly’ the provisions of the relevant conventions developed by the United Nations, the Hague Conference for Private International Law and other organisations are. In doing so, it critically discusses in particular Article 10(3) of the UN Electronic Communications Convention of 2005, the most recent attempt at regulating mobile communications. Finally, it identifies a number of problems that have hitherto been overlooked (as notably the interaction of Article 10(3) of the UN Electronic Communications Convention with traditional private international law rules on the formal validity of contracts or with Article 3(2) of the Hague Convention on the Law Applicable to International Sales of Goods of 1955), and proposes appropriate solutions.