Legal Issues in E-Healthcare Systems - E-Healthcare Systems and Wireless Communications - page 41

As the parties have freedom of contact, they
may stipulate in contract in which the dispute
should be adjudicated should any dispute emerge.
The court must have power over parties and subject
matter over the claims involved in the matter to
enter an enforceable judgment against the parties
in litigation
However, the industries are not happy with
the amendments. They argue that the amendment
instead of updating the convention it changes the
status quo of the Convention, the amendment will
subject the businesses to foreign jurisdiction even
if they have no connection with that particular
country except the presence of mere web site.
They also argue that the amendment imposes a
heavy burden on the businesses to be aware of and
comply with laws of all member countries and the
amendment goes against the principle of another
EU directive: E-Commerce Directive which re-
flects country of origin principle. It is to be noted
that the E-Commerce Directive is not applicable
to consumer transactions. And the purpose of this
Directive is to boost e-commerce without altering
the position as regards consumers and levels of
consumer protection. 1 Therefore, the argument
as to contradiction between the Brussels II and
E-Commerce Directive is not correct.
It is further argued that the country of origin
principle should be applied. This is because by
buying from Internet, one may have obtained
something which would not be available from
offline; or the consumer paid a much lower price
than he would have done if it had been specially
imported for him. Therefore, economic benefit
should justify the loss of individual protection
and therefore applying caveat emptor will be
justifiable (kentlaw.edu, n.d.).
It is also said that applying country of origin will
help the medium-sized businesses, which want to
take advantage of e-commerce with less cost and
diverse consumers. However, it is counter argued
that to cope with the jurisdictional problem, it is
possible to have filtering system that would bar
the e-consumers with certain Internet Protocol
(IP) addresses form transacting.

By virtue of the Brussels Convention and
Brussels II Regulation enforcement of judgment
of among EU member counties is easily be en-
forced but beyond EU, there is a need for mutual
enforcement treaties. In the absence of such trea-
ties, the courts in foreign countries may refuse to
enforce foreign judgments that are based on legal
principles or standard different from their own.
For example the House of Lords in Berezovsky
v. Michaels [2000] 2 All ER 986 acknowledged
that an award of damages by an English Court in
an English libel case may not be enforceable in
US. In the case of Fiona Shevill and Ors v. Presse
Alliance SA [1997] Ch.293 a newspaper was
suit concerning an article distributed to several
European States instead of ruling that all states
have jurisdiction, the court held that jurisdiction is
limited to courts of those States where was known.
The laws and regulations that address e-commerce
can be extended to cover transactions or dealings
relating to e-health products and services.
The courts in UK under common law may
claim jurisdiction if a defendant can be physically
served with a claim form i.e. writ. In the case of
Pearc e v. Ove Arup [1997] Ch.293 the English
court decided that it is entitled to hear a dispute
involve foreigners on the basis that the defendant
domiciled in England. In the case of partnership
and corporation, if they have a place of business
in England, a claim form may be served at the
location irrespective of the fact partners are UK
or not. This allows the local courts to exercise
jurisdiction over foreigners doing business in
UK. In the case of South India Shipping Co. Ltd
v. Export-Import Bank of Korea [1985] 3 All E.R.
216, the court had stated that the court would see
whether the corporation is 'here'. If it is, it can
be served. In order to determine they are 'here',
the court will ascertain whether the business is
carried on here and at a definite place.
If the plaintiff is a foreign consumer, he can eas-
ily use the English courts to sue any on-line vendor
with a place of business in England. Similarly an
e-commerce vendor also can file a suit in England
if the consumer is presence in England provided