Vol 7 No 1 - Roger Williams University School of Law

international level, it is necessary to examine their consistencywith other law,148 such as the Rome Convention which determineschoice of law149 and the 1968 Brussels Convention on choice offorum,150 and to examine their propriety in light of internationaldiscussions such as those currently taking place in the Hague.151Recognition of party autonomy is taken to an even furtherextreme in UCITA’s condonation of a licensee’s self-help rights,which calls into question the propriety (from both a legal andpolicy perspective) of the use of technological methods to replaceboth contract and intellectual property law as a method ofprotecting a licensor’s rights in information.152Despite the difficulties inherent in adopting UCITA as modelinternational legislation, UCITA is nonetheless useful as a guideto future work in the field. Even the critics of UCITA recognizethe contributions that it has made to the development of theLaw: Party Autonomy in Choosing Applicable Law and Forum under ProposedRevisions to the Uniform Commercial Code, 32 Int’l Law. 1067 (1998); KathleenPatchel, Choice of Law and Software Licenses: A Framework for Discussion, 26 Brook J.Int’l L. 117 (2000).148. One particular aspect of the choice of law rule bears special note: thedifferentiation between the law of jurisdictions inside and outside the United States.Under UCITA, if the laws of a country outside the United States apply as a result ofthe choice of law provisions, that law governs only if it provides substantially similarprotections and rights to a party not located in that jurisdiction as are provided underUCITA. UCITA § 109(c). Significantly, this rule applies only if there is no contractchoice of law provision: the theory being that the parties (including consumers) canagree to give up the protections they would otherwise be entitled to. To the extent thatthis provision demonstrates a “U.S.-centric” provision, its propriety on an internationalbasis is extremely questionable. A similar problem exists in the proposed revisions toArticle 1 of the Uniform Commercial Code.149. Convention on the Law Applicable to Contractual Obligations, opened forsignature June 19, 1980, 1980 O.J. (L 266) 1.150. Convention on Jurisdiction and the Enforcement of Judgments in Civil andCommercial Matters, 1978 O.J. (L 304) 77.151. Hague Conference on Private International Law.152. See generally Robbin Rahman, Electronic Self-help Repossession and You: aComputer Software Vendor’s Guide to Staying out of Jail, 48 Emory L.J. 1477 (1999);Craig Dolly, The Electronic Self-help Provisions of UCITA: A Virtual Repo Man?, 33 J.Marshall L. Rev. 663 (2000). One of the arguments frequently advanced in favor of theself-help provisions is that self-help is already recognized in the Uniform CommercialCode Article 9 provisions dealing with default; this is one area where there isapparently a reluctance to admit that the issues involving electronics are sufficientlydifferent to merit a different rule. See Hugenholtz, supra note 78, at 78-79 (“Thecombination of contract and technology poses a direct threat to the copyright system aswe know it, and may require an entirely new body of information law to guard thepublic domain.”).