“”Now the last time I stood in front of a crowd of 30-odd people and two lawyers, I was addressed as ‘the defendant.'”” (Insert rim shot here.)
I managed to suppress the lawyer humour at Comdex Canada 2002, where I led a panel discussion on the law and online commerce. “”Led”” is too strong a
word, of course, but “”was carried by two internationally recognized experts in the field,”” while nearer the truth, lacks a certain je ne sais quoi — credibility, perhaps.
Duncan Card of Ogilvy Renault and David Young of Lang Michener — an eBusiness Journal columnist until the workload of his real job got the better of him — held forth on an array of legal issues from partnership strategies to back-office outsourcing.
But the curious and clouded issue of jurisdiction was the one that got the most attention. Hang up your shingle on the Web, and you’re de facto worldwide. When an American company with a Web server taking orders in Calgary manufactures thingamajigs at a plant in Malaysia for delivery in Brussels, how do you deal with the oft-contradictory web of jurisdictions?
Card pointed out that the law of every jurisdiction your transaction touches applies in some way. If someone takes your company to court in L.A. and wins, judgment is served against you by a Canadian court (with the accompanying, “”My product went to California and all I got was this lousy lawsuit”” T-shirt).
In a more straightforward B2B transaction, a little bit of jurisdiction-shopping can go on in the negotiation of a contract. A governing law clause can specify that, for instance, in some transactions between an Ontario company and one from Pennsylvania — an example posited by an audience member — Ontario law will be applied. There are home-court advantages in business as well as basketball. If the deal goes awry, the other party has to come to your house to sue or respond.
Young remarked that wanting home-court advantage and negotiating it into the deal are two different matters, and sometimes there are advantages to playing on the road. The law in your trading partner’s jurisdiction might actually favour certain aspects of your transaction, perhaps in terms of more lenient regulations or tax reporting.
One thing made adequately clear in the discussion — you’re looking at consulting a lot of lawyers to straighten your online business out.
For those of you who wanted me to close with a lawyer joke — sorry. You’ll have to visit http://www.duhaime.org/jokes.htm instead. (While you’re at it, see The Dumbest Things Ever Said In Court at http://www.duhaime.org/dumb.htm.)
