CYIL 2012

PARALLEL NATIONAL AND INTERNATIONAL LAWS ȃ CZECH LAW AND THE PROPOSED… how well the different Member States can assimilate a broad EU private law. The experience of the Eastern EU Member States in assimilating the CISG into their legal systems indicates that CESL may have an uneven application in these countries. The divide between Western European and Easter European law assimilation will be discussed later in this Article. In response to the evolution of the licensing of computer and digital information, NCUSSAL and ALI initially promoted the idea of adopting an Article 2B of the UCC for the licensing of goods. Unfortunately, one of the sponsoring organizations withdrew its sponsorship and the Article 2B project was abandoned. In its place, the ALI published a model law called the Uniform Computer Information Transactions Act (UCITA) 13 as a surrogate. However, this model law was rejected by all but two American states. More recently, the ALI approved the Principles of the Law of Software Contracts (Principles) in May of 2009. 14 T hese Principles cover “agreements for the transfer of software including sales, licenses, leases or access contracts, whether negotiated or standard form and whether the delivery of software is by tangible or electronic medium.” 15 Even though the Principles recognize the adhesive nature of standard terms and e-forms, it provides little in consumer protection other than to encourage businesses to provide easy access to contract terms, preferably by requiring a clicking of “I Agree” following the terms in an online transaction. However, Principles is an example of a soft law, unlikely to be adopted by any state legislature. It leaves it to “watchdog” groups to monitor company practices. In the end, the United States has failed to develop a body of specialized rules for licensing contracts, digital ones or otherwise. Instead, licensing contracts remain within the domain of the common law (general law) of contracts. Other than the failure of the Article 2B project, a major setback for the continuous updating of the UCC has been the failure to revise Article 2 on the sale of goods. Sale of goods law remains, as it was when the UCC was published in 1952. A Revised Article 2 was put forward in 2003, but a lobbying effort by a few industry groups was successful in influencing state legislatures against adopting the revision. The new Article 2 could have reduced the number of divergent rules found in the CISG and the UCC Article 2, which would have made the CISG more appealing to American businesses and would have reduced cases of unexpected liability when the CISG is applied to a contract dispute. Europe and CESL have taken steps to prevent the obstacles to revisions and updating of its law. CESL, for example, possesses a “review clause” which requires a two-step process. First, Article 15 mandates that after four years EU Member States are to report on the frequency of its use, the degree of litigation over the meaning of its Articles, and divergences between CESL and national laws in the area of consumer 13 See http://www.law.upenn.edu/bll/archives/ulc/ucita/ucita200.htm. 14 American Law Institute, Principles of the Law of Software Contract (2009). 15 Robert Hillman, “Contract Law in Context: The Case of Software Contracts”, Wake Forest Law Review 45 (2010, 669, 673).

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