Legal Issues in E-Healthcare Systems - E-Healthcare Systems and Wireless Communications - page 38

There is a significant exception to the rule of
defendant's domicile (Article 2) is available under
the Conventions and Regulation. It allows the
consumer to sue the defendant vendor in either
the defendant's domicile or the consumer's own
domicile. On the other hand, the consumer can
only be sued in his own domicile. Article 14 states
that a consumer may bring an action against the
other party in a contract in the contracting state in
which that party is domiciled or in the courts of
contracting state in which he is himself domiciled.
However, when a seller wants to bring an action
against a consumer only in the courts in Contract-
ing State in which the consumer is domiciled will
have jurisdiction. If the consumer entered into a
contract with the party who is not domiciled in
the contracting state but has a branch, agency,
or other establishment in one of the contracting
state, the party shall, according to Article 13, in
disputes arising out of the operations of branch,
agency or establishment, be deemed to be domi-
ciled in that state.
Accordingly, in a dispute out of a transaction
relating to e-health goods or services with a branch
of a corporation, agency or other establishment
the jurisdiction will be in the state in which the
branch, agency or other establishment of the de-
fendant is situated. When an e-health transaction
is concluded via web site the issue is whether a
web site is a “branch, agency or other establish-
ment”. The Conventions and the Regulation are
silent on this issue. However, the Recital 19 of the
E-Commerce Directive addressing this issue in
the context of e-commerce states that neither the
place at which the technology supporting neither
the web site nor the place where the web site is
accessible may be considered to be the place of
establishment of the company providing service
via the Internet. The Recital makes it clear that
the web site is neither a branch nor a place of
business. Similarly the place where the web server
is placed is not considered as place of business.
When a consumer is involved in e-contract
related dispute, the court in the user country will

hear the case which is referred as country of des-
tination as opposed to the traders' country court
(country of origin). Article 13(3) of the Brussels
Convention states that:

A. In the State of the consumer's domicile the
contract was preceded by a specific invita-
tion addresses to him or by advertising; and
B. The consumer took in that State the steps
necessary for the conclusion of the event
of a dispute.”

Article 15, however, provides certain excep-
tions to general rule on user contracts:

1. The parties by an agreement which is entered
into after the dispute has arisen can decide
on the convenient forum;
2. The consumer can bring proceedings in
courts other than those indicted in this
provision;
3. Both parties whom at the time of consumer
contracts domiciled or habitually resident
in the same Contracting State, and which
confers jurisdiction on the court of the State.

The European Court of Justice stated that ”
the special system established by article 13 of the
Convention is inspired by the concern to protect
the user as the party deemed to be economically
weaker and less experienced in legal matters than
the other party to the contract, and the consumer
must not therefore be discouraged from suing by
being compelled to bring his action before the
courts in the Contracting State in which the other
party to the contract is domiciled.”
Geist, (1999) stressed that in deciding ju-
risdiction of e-dispute to be based on country
of destination. Even if it introduces country of
destination principle in selecting proper form
to decide consumer dispute, the scope of the
protection under the Convention is limited. The
Convention extends protection for sale of goods
to consumers and has limited protection for