Other Litigation Issues
Electronic Lititgation
Despite being haunted by the spectre of the Y2K bug, the year 2000 has been productive in terms of controversies related to the information technology industry. This has been partly boosted by the new economy and partly by the Directive of Electronic Commerce (2000/31/EC) which was issued by the European Parliament and the European Council of June 8 2000. It is aimed at legislators. The directive (i) deals with certain legal aspects of information society services, in particular electronic commerce, in the internal market, and (ii)fills gaps in regulations on such issues as the liability of players in the internet market. Article 18 contains certain provisions about the procedure:
"Member states shall ensure that court actions available under national law concerning information society services' activities allow for the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved".
In February, the Spanish government presented a Bill of Electronic Commerce, which was intended to implement the directive (see Regulating Electronic Commerce). After the general elections, the government decided in October to present a New Bill of Electronic Commerce. It seems that this is the version that will finally be discussed in Parliament.
The judicial procedure is dealt with in Article 25, which states that:
"Notwithstanding the regulation established by the Civil Procedure Act, by the Criminal Procedure Act, and by the rest of the procedural rules interim measures will be available that will allow a party to put an end to any trespass and to avoid any damages to those related with the activities or with the services of the information society.
In case a declarative action or an injunction or a retraction action is filed regarding a predisposed contract or a contract containing general conditions, the rules established in the General Clauses Act, 7/1998 will be applied and notice of the lawsuit will be published in the Registry of General Clauses".
One of the ways in which this bill differs from its predecessor, is in the applicable law and forum. This matter is covered by Article 23 which, in the current version, states:
"In case one of the parties of a contract entered into by electronic means is not a national of a European Union member state, the applicable law and the competent forum will be determined according to the international conventions to which Spain is a party and, if it is necessary, following the rules contained in the Preliminary Title of the Spanish Civil Code"
Also in February, the government issued an order which deals with the legal status of the digital signature certification authorities and their obligations towards the regulator. It covers not only the certification of digital signatures, but also deals with other services that the digital signature certification authorities may provide.
Judicial recognition
On October 26 2000 the EU Council issued a regulation on the judicial competence and recognition and enforcement of judicial decisions in both civil and mercantile matters.
Civil Procedure Bill
As for the national legislator, the new Bill of Civil Procedure will come into effect on January 8 2001. It establishes a new framework for civil procedure and simplifies the existing regulation. (The main issues raised by the bill have been discussed in Injunction Procedure Revised and Civil Procedure Reforms).
Bar ethics
As to the status of the legal profession, the Madrid Bar Association issued a new Ethical Code on June 30 2000, regulating the advertising of the services of lawyers and the way in which the legal fees can be calculated.
For further information on this topic please contact Jorge Hernández and Jorge Capell by telephone (+34 9152 47100) or by fax (+34 9152 47153) or by e-mail ([email protected] or [email protected]).
The materials contained on this web site are for general information purposes only and are subject to the disclaimer.