Exploring legal frameworks for contractual liability clauses: a comparative study of electronic contracts in the United States, France and Kazakhstan

Abstract

This research compares legal practices and doctrinal approaches to liability for breaches of digital agreements, identifying three models: the American model (“privatised liability”), the French model (“public protection”) and the Kazakhstani model. Through a comprehensive methodology – formal-legal analysis of national legislation, empirical study of judicial practice and content analysis of standard terms of service of dominant technology platforms – the study highlights the limitations of Kazakhstan’s current system. The Kazakhstani approach, which requires a national Electronic Digital Signature for an agreement’s validity, leads to a “formalistic vacuum”, rendering most modern electronic commerce legally invalid and depriving parties of contractual remedies. The research concludes that Kazakhstan’s legal framework is non-viable and stifles the development of the digital economy. A hybrid reform model is proposed that moves away from formalism and embraces technological neutrality. The proposed model includes recognising “clickwrap” consent, as seen in the American model, and implementing protective mechanisms, such as prohibiting “unfair terms”, following the French model.