42 McMurtry formulates the same notion in the context of e-commerce: ‘The law of
contract was originally developed in an age of face-to-face negotiations and paper
contracts, when a time lag between agreement and its fulfilment were expected. The
law that developed in a simpler time cannot necessarily accommodate the new reality.
Although common-law will continue to evolve, the existing law may simply have
become irrelevant in the face of new realities. In these circumstances, we should not
torture or twist existing jurisprudence to make it applicable to situations for which it is
not equipped.’ R Roy McMurtry, ‘Information Technologies and Globalization’ in
Lisa Austin, Arthur J Cockfield and Patric A Molinaryi (eds), Technology, Privacy and
Justice/ Technologies, vie privée et justice 2005 (Canadian Institute for the Administration
of Justice/ Institut canadien d’administration de la justice 2006) 23.
43 Avinash Dixit examines alternative ways of legal governance. According to his analysis,
economists have considered law as a prerequisite for successful markets. Most often
this need for governance has been directed at the nation-state. However, only some
evolved nation-states have been able to fulfil this idealized image, which leads Dixit to
evaluate alternative models of governance. See, Dixit (n 40) 2–3.
44 Teresa Rodríguez De Las Heras Ballell, a Spanish professor of commercial law, discusses
the changes of contractual law similarly: ‘Most radical perception of the Web describes as
an anarchic world, where the law, born to manage and settle disputes in a national-border
scene, is unable to moor territory-based connecting factors in the new digital borderless
space. Business strategic response to such gap has been two-fold. On the one hand, relying
on contract as a powerful device to manage risks and align interests beyond the law that is
undergoing serious and complex difficulties to face challenges issued by the new space.
That has boosted an increasing phenomenon of “contractualization” of activity on the
Web. On the other hand, entrusting technological architecture with regulatory tasks
further than a mere supporting role. Far from operating as a simple technical infrastructure, technological architecture disciplines user conduct, imposes obligations, limits and
determines the exercise of rights.’ Teresa Rodríguez de las Heras Ballell, ‘Terms of Use,
Browse-Wrap Agreements and Technological Architecture: Spotting Possible Sources of
Unconscionability in the Digital Era’ (2009) 2009 Contratto e Impresa/Europa 841,
860. See also Immaculada Barral-Viñals, ‘Electronic Mass Procurement by Means of
“Web Technology”: Basic Options in Its Regulation’ (2014) 20 ILSA Journal of International and Comparative Law 373.
158 Three quests for justification
contract was originally developed in an age of face-to-face negotiations and paper
contracts, when a time lag between agreement and its fulfilment were expected. The
law that developed in a simpler time cannot necessarily accommodate the new reality.
Although common-law will continue to evolve, the existing law may simply have
become irrelevant in the face of new realities. In these circumstances, we should not
torture or twist existing jurisprudence to make it applicable to situations for which it is
not equipped.’ R Roy McMurtry, ‘Information Technologies and Globalization’ in
Lisa Austin, Arthur J Cockfield and Patric A Molinaryi (eds), Technology, Privacy and
Justice/ Technologies, vie privée et justice 2005 (Canadian Institute for the Administration
of Justice/ Institut canadien d’administration de la justice 2006) 23.
43 Avinash Dixit examines alternative ways of legal governance. According to his analysis,
economists have considered law as a prerequisite for successful markets. Most often
this need for governance has been directed at the nation-state. However, only some
evolved nation-states have been able to fulfil this idealized image, which leads Dixit to
evaluate alternative models of governance. See, Dixit (n 40) 2–3.
44 Teresa Rodríguez De Las Heras Ballell, a Spanish professor of commercial law, discusses
the changes of contractual law similarly: ‘Most radical perception of the Web describes as
an anarchic world, where the law, born to manage and settle disputes in a national-border
scene, is unable to moor territory-based connecting factors in the new digital borderless
space. Business strategic response to such gap has been two-fold. On the one hand, relying
on contract as a powerful device to manage risks and align interests beyond the law that is
undergoing serious and complex difficulties to face challenges issued by the new space.
That has boosted an increasing phenomenon of “contractualization” of activity on the
Web. On the other hand, entrusting technological architecture with regulatory tasks
further than a mere supporting role. Far from operating as a simple technical infrastructure, technological architecture disciplines user conduct, imposes obligations, limits and
determines the exercise of rights.’ Teresa Rodríguez de las Heras Ballell, ‘Terms of Use,
Browse-Wrap Agreements and Technological Architecture: Spotting Possible Sources of
Unconscionability in the Digital Era’ (2009) 2009 Contratto e Impresa/Europa 841,
860. See also Immaculada Barral-Viñals, ‘Electronic Mass Procurement by Means of
“Web Technology”: Basic Options in Its Regulation’ (2014) 20 ILSA Journal of International and Comparative Law 373.
158 Three quests for justification