International Custom as a Source of Law in Global Electronic Commerce

The law has failed to keep apace with the rapid rise in e-commerce. This is particularly so when e-commerce spans national boundaries. There exists a regulatory gap that may result in unexpected outcomes for e-commerce companies involved in litigation. This paper investigates the possibility and feasibility of employing the concept of international commercial custom (hereinafter referred to as “e-custom”) as a source of law, as a potential solution to legal disputes in contractual global electronic commerce. Under this proposal, e-custom raises to the level of law the most widespread web practices thus providing the Internet community with a flexible set of norms regarding dealings on the Net. E-custom can also supplement existing domestic regulation of electronic commerce and future international regulation of digital trade. The paper sets out the issues that need to be addressed to make this proposal work and analyses them using developments from neighbouring fields of legal knowledge, mainly international public law and international trade law.