Vol 7 No 1 - Roger Williams University School of Law

ights are suspect.103 Other attempts to protect consumersagainst overreaching in adhesion contract situations have beenproposed in Europe.104 Any attempts to enlarge the scope of theCISG, or to draft another international instrument dealing withboth commercial and consumer transactions, will need to come toterms with these norms, which are broadly accepted in majortrading nations.C. UCITA as an International Uniform ActAn alternative to enlarging the scope of the CISG toaccommodate software or information contracts is to follow theUCITA precedent and develop an international uniform lawdealing with such transactions. Again, if such an effort wereundertaken, there is much to learn from UCITA and thediscussions surrounding its drafting and adoption. It is highlyunlikely, however, that UCITA would ever be found amenable towholesale adoption on the international level.105Structural IssuesThere are a number of observations (both general andspecific) that support this conclusion. First, some say a picture is103. Id. at art. 12.Member States shall take the measures needed to ensure that the consumerdoes not lose the protection granted by this Directive by virtue of the choice ofthe law of a non-member country as the law applicable to the contract if thelatter has close connection with the territory of one or more Member States.Id.104. In a recent letter to Parliament, the Dutch Minister of Justice suggestedintroducing so called “unwaivable use rights” in order to expressly protect informationconsumers against unconscionable licensing practices. Hugenholtz, supra note 78, at83 n.27; see also Francois Dessemontet, The European Approach to E-Commerce andLicensing, 26 Brook. J. Int’l L. 59, 68 (2000) (“[T]he French Conseil d’Etat hassuggested that a hyperlink be created so that the professional codes of conduct beembodied as General Terms and Conditions of the contract . . . . Such a renewedconfidence in General Terms and Conditions could allow for the European Law and theU.S. self-regulatory approach to converge to a larger extent.”) Arguments made duringthe UCITA drafting process, however, that certain terms (e.g., choice of law rules)should be “non-waivable” in mass market licenses were rejected.105. A forthcoming German book examines the appropriateness (orinappropriateness) of the UCITA model under German law, considering such areas aswarranties, choice of law, and formation. Der E-Commerce Vertrag nach US RechteineEinfhrung in den Uniform Computer Information Transaction Act (UCITA) unterBercksichtigung der Auswirkungen auf das Vertragsrecht fr IT Produkte (OttoSchmidt Verlag, forthcoming 2002).