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For the purpose of this question, let's assume an eCommerce company has the following profile:

  • Registration Location: London;
  • Distribution and Manufacturing: London;
  • Domain Name: www.example.co.uk;
  • Physical Location of Server: UK;
  • Orders: This domain only accepts orders from within the UK.

Referring to the above profile, it would be fairly obvious that this eCommerce company would be required to abide by the Laws and Legislation set within the Jurisdiction of England and Wales.

Expansion

Then let's assume this same company decides to expand and reach out to an Australian audience for example. To do this, the company sets up a new www.example.au domain to accept orders from Australia.

What Jurisdiction would this Australian website fall under? Would it be required to follow the Laws and Legislation of England and Wales, since it is operating from such a location or would it need to be mindful of the Laws and Legislation of where the site visitor interacted with the website?

Further Complications

Assuming there is a simple answer to the above, what would happen if the company also had a www.example.com domain that would accept orders from the rest of the World? Again, this 'Rest of the World' domain being operated from the UK.

Let's make things a little more complicated. Keeping with the above scenario but this time, the company opens up an Office in Australia that deals with Customer Orders, Enquiries and manages the Manufacturing & Shipping operations. Same company just another Office in a different Geographical location. How would this impact matters concerning Jurisdiction?

My Assumptions

I have come across a lot of discussions online, often conflicting, but would appreciate feedback on my assumptions on such matters.

Although www.example.au is a domain that accepts orders from outside the UK, it is still run and operated by a UK Registered Company. Therefore, such a website should be Governed by the Jurisdiction of England and Wales. The company should make this clear in the website' Terms of Use, where the Terms of Use should be accepted by potential customers prior to any orders being submitted from Australia to the UK for processing; regardless of the ggTLD (.co.uk, .au etc) of the domain.

In the event that the Company is registered in the UK but the servers are physically located in Australia, I am assuming the company could not be penalised by the Jurisdiction of Australia but Australian authorities could request the server to be shut down in Australia if they feel any content or interactions etc do not comply with their Laws and Legislation. This then basically saying 'If you want to operate here, you will need to register and comply with our laws'.

Moving on to the issue of having an Office/Distribution Warehouse in Australia ...

Would I be right in thinking that the UK based Company would need to register the Offices/Distribution Warehouse in Australia? Effectively creating a separate Australian Company? Therefore, this Company being required to comply with the Laws and Legislation within Australia?

My thoughts being that if the company was not registered as a company in Australia, issues revolving employment, tax etc would arise not to mention relevant Insurances.

In the event that the company wanted to set its UK Registered Company as the 'Headquarters', they would need to set up a Contract between the UK and Australian Company. This would bring with it the issue of Jurisdiction between the countries but that is a whole other question.

I am getting a lot of conflicting information to date, including from Legal advisors, but I would appreciate any feedback on the experiences of others and/or any pointers into the direction I should per sue to establish facts on matters of Jurisdiction.

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    One thing to keep in mind is that it may not help to think about "the correct jurisdiction". It is entirely possible that the company will have to simultaneously comply with the laws of multiple jurisdictions. Each country is sovereign and has the ability to punish the company if it violates that country's laws, regardless of what the laws of any other country may say. – Nate Eldredge Oct 18 '19 at 1:41
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    Your question assumes that there is a unitary answer to this question. There isn't. The jurisdiction that applies is determined on a case by case, and often issues by issue within a case basis. It is common place for a multinational company to have legal issues governed by the laws of many jurisdiction on different issues (and for it to be governed by more than one set of laws on the same issue). In transactional matters, choice of forum clauses often control. – ohwilleke Oct 18 '19 at 1:42
  • @NateEldredge ... In reference to your ability to punish the company quote, how would a company be punished if company does not physically reside within a Jurisdiction? In terms of the online World, are you saying punishments could typically include blocking websites or is it a case that if a company does not comply with one Jurisdiction, that Jurisdiction can inform the Jurisdiction where the company resides, as to pass the relevant punishment? – Craig Oct 18 '19 at 2:44
  • @ohwilleke ... In reference to your governed by the laws of many jurisdiction quote, what would happen if there is a conflict between Laws? Would one prevail and if so, is there a criteria? I see the 'choice of forum clauses' you highlight touches upon this. How would this be approached from an online perspective. Is it good enough to state which shall prevail, in the event of a conflict, within the 'Terms of Use' page? When a customer agrees to the 'Terms of Use', prior to placing an order for example, would this constitute a Contract/Agreement? – Craig Oct 18 '19 at 2:49
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A company (or any other person) must comply with all relevant law

This is no different from the problem faced by a single jurisdiction operation (like your local coffee shop): what laws apply to me? It’s just multiplied by the number of jurisdictions they operate across: what laws apply to me here?

Your hypothetical UK company must copy with applicable UK law.

And applicable Australian law. And applicable French law. And applicable US law. And applicable Bangladeshi law. And applicable Brazilian law. And ...

Now, unless the company is engaging with those countries (and states/provinces) in some way, most of their law will not be applicable. While your UK company is only servicing UK customers, only employing in the UK and only sourcing goods and services from UK suppliers, they will only have to deal with UK law - which is actually 3 jurisdictions with different laws: England and Wales, Scotland, and Northern Ireland.

If they start dealing with Australian customers then Australian law becomes applicable. In their contract with their customers, they can specify that the law applicable to the contract will be the law of England and Wales. Australian courts will usually respect that; if an Australian brings a case then, while it may be heard in a New South Wales court, the law applied will be that of England and Wales.

However, there are some laws that cannot be excluded by contract - usually consumer protection laws. In this particular situation, Australian Consumer Law applies to all transactions in Australia. For example, the US company Valve (who owns the game distribution platform Steam) misled Australian consumers with an illegal "no refund" policy and was fined over $3 million.

Further, a contract only applies to the contracting parties. If your UK company negligently supplies a defective product which injures a third-party, that third-party can sue under the applicable law - usually the law where they were injured.

Taxation law also cannot be contracted out of. Your UK company would have to collect Australian Goods and Services Tax (GST) from their Australian customers and remit it to the Australian Tax Office. If they employ people in Australia they have to collect and remit their income tax. Australia doesn't have withholding taxes for foreign companies, but some countries like Malaysia do. Fortunately, Australia has a national based tax system - good luck in the USA where each state sets its own taxes.

Multi-national companies have teams of lawyers and accountants to deal with this.

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  • Thank you for your insight. Are you referring to an eCommerce's 'T&Cs' Page, when stating In their contract with their customers? You also state some laws that cannot be excluded by contract - usually consumer protection laws. Whilst I understand the theory of this, the reality is that there can be a conflict. One Jurisdiction's Consumer Protection Act may require companies to detail X amount of attributes on their page whilst another Jurisdiction may require a different set of product attributes to be displayed. How would an eCommerce site deal with such contradictions? – Craig Oct 20 '19 at 23:35
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    @Craig I'm happy to answer your questions - so please post them as questions. – Dale M Oct 21 '19 at 0:40
  • Thank you for offering to answer such queries. Not really sure how to go about turning my Comments into another question without sounding like a duplicate question. Ultimately, I am looking for the answer to working out the relevant law when an eCommerce site operates in one Jurisdiction but accepts a sales transaction in other. Once knowing the criteria for establishing the relevant Jurisdictions, other Governance queries should fall in place; I assume. – Craig Oct 21 '19 at 23:19
  • Your comment above is more or less fine as two questions - one about how contracts relate to T&Cs and what to do if consumer protection laws conflict – Dale M Oct 21 '19 at 23:22
  • Ok. I am attempting to re-write a new question but I keep coming back to this question. Referring to your answer, it seems there is a lot of what ifs and maybes. Ultimately, it does feel that no one really knows as it seems virtually impossible to get any consistent answers. I have spoken with Lawyers, Politicians, Academics and Business Professionals with none giving a solid answer. – Craig Oct 22 '19 at 3:44

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