Electronic commerce and jurisdiction: Are forum selection clauses in online contracts enforceable? An analysis focused on Canadian and American case law and the works on jurisdiction of The Hague Conference of Private International Law.

摘要

Forum selection clauses appear as a mechanism that may provide jurisdictional certainty and predictability to electronic commerce. Nevertheless, those clauses may not be always a satisfactory solution to parties in online contracts because such clauses may not be enforced in certain circumstances. By examining the law of forum selection clauses in Canada and the United States, this thesis discusses the circumstances in which forum selection clauses may not be enforced due to the application of discretionary tests and their inclusion in consumer contracts. This thesis also reviews the enforceability of forum selection clauses in 'clickwrap' and 'browsewrap' contracts in Canadian and American case law. Moreover, this thesis studies whether discretionary tests and non-enforcement of forum selection clauses in online business to consumer transactions favour the development of electronic commerce. Finally, this thesis addresses the enforcement of forum selection clauses within the works of The Hague Conference of Private International Law.