Vol 7 No 1 - Roger Williams University School of Law

nature of law-making both domestically and internationally. Atleast one European scholar has characterized the substantialfailure of the states to enact UCITA as a demonstration that theUnited States “has not yet resolved to regulate by law, on anation-wide scale, the basic issues raised by contracting on theNet.”163 Thus, in the United States, common law will develop torespond to the needs of electronic commerce, filling the gaps asneed be. By contrast, the lack of any common law in manyEuropean and other countries means that, if there is to be anybody of law on electronic commerce, it must be imposed by statuteor be “regulatory.” Thus, arguably the need for a detailedstatutory framework for electronic commerce is greater in Europethan in the United States.Yet most of its supporters would undoubtedly balk atcharacterizing UCITA as “regulatory.” UCITA proponents went togreat lengths to assure that, from their perspective, the resultingact was not regulatory and resisted attempts to include provisionsthat they had deemed regulatory in substance.164 This apparentdisagreement as to whether or not UCITA is “regulatory” reveals afar more fundamental difference between UCITA and the type oflegislation one typically finds in civil law or European countries.In the latter, legislation or regulation is most frequently aimed atputting restrictions on what private parties may do, or mandatingwhat they must do. An example is the European Directive onElectronic Commerce, which requires disclosures of prescribedinformation and use of prescribed procedures in commercialtransactions.165 UCITA arguably represents a differentperspective of an appropriate legal framework for electroniccommerce than one might find internationally.166 As one163. Dessemontet, supra note 104, at 61.164. Ring, supra note 64, at 326-27.165. See, e.g., Directive on Electronic Commerce, supra note 161, at art. 5 (requireddisclosures of information by service providers), art. 7 (restrictions on unsolicitedcommercial communications) and art. 11 (mandating procedures to be followed uponreceipt of orders and mandating availability of error correction procedures).166. There are some that might argue that UCITA is an example of “private rentseeking”where private interests influence the lawmaking process to achieveredistributive goals, e.g., licensors of software “dominate the rulemaking process andimpose on the rest of the world a set of rules that diminishes overall welfare but thatmake licensors better off.” Paul B. Stephen, Choice of Law and Its Consequences:Constitutions for International Transactions, 26 Brook. J. Int’l L. 211, 215 (2000); seealso Iain Ramsay, The Politics of Commercial Law, 2001 Wis. L. Rev. 564.