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Outside of the EU however, other principles may apply. For example the
Swiss data protection act covers even such data usage abroad, which barely
has any connection to Switzerland.
2.3.3
Compliance
The term Compliance concisely summarises various provisions enacted by
public authorities that have to be abided by depending on occupational
group or position. These are among other authorisation requirements,
notification requirements or regulatory provisions specific to certain lines of
business. Except by choosing appropriate structures the parties cannot
escape from these regulations. In the reality of compliance matters, choices
of laws are not enforceable. For instance, compliance may lead to the
obligation to disclose data, even if such data is not located within the
country, where the relevant compliance‐provisions apply.
Here those trade‐specific provisions are especially relevant, which do not
apply to every Cloud user but affect those concerned all the more. All in all it
can be said that even though no truly internationally applicable conclusions
can be drawn, the usage of Cloud Computing services is permissible in most
cases, albeit perhaps with certain charges or restrictions.
2.3.4
Contract law
In most cases the contract is governed by the laws of the country in which
the Cloud provider, not the Cloud user, has its seat. In some cases however
the laws at the location of the server may apply. As far as contract law is
concerned, choice of law is possible. Therefore the Cloud provider and the
Cloud user can choose to render a more advantageous law (though in most
cases this is simply the own, known law) applicable.
An essential aspect of drafting a contract is the legal type of the particular
Cloud contract. This depends on the one hand from the services obtained,
on the other hand from the applicable law. From this classification certain
legal restrictions or liberties may result, which the lawyers drafting the
contract need to take into consideration.
For standard contracts certain constitutions may therefore require
amendments. Such amendments are usually not extensive, as to influence
whether the interest in Cloud services remains or wanes. Yet it is important
that such indirect influences exist, as the parties may in turn control e.g.
through the choice of the IT server location or of the applicable law.
