The Law of Electronic Commerce and Issues of Electronic by vow15418


									The Law of Electronic Commerce
and Issues of Electronic Contracts
  - An International Perspective

• Alan Davidson
• University of Queensland
   – TC Beirne School of Law
• Solicitor and Barrister

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            International Treatment
• Consumer and privacy issues are being
  addressed internationally
• United Nations

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World Trade Organisation - WTO

• Electronic Commerce and the Role of the WTO
• Stated goal - to create rules to govern the
  electronic marketplace
• Interim Report On Electronic Commerce -

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• United Nations Commission on
  International Trade Law (UNCITRAL)
• Model Law for consumer protection in an
  electronic environment
• Purpose to remove legal obstacles to e-
  commerce and to create a more secure legal

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         Model Law on Electronic
• Aim - to provide national legislatures with a
• Facilitates - use of electronic communication
  and storage of information (electronic data
  interchange and electronic mail)
• Gaining international acceptance

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• Enabling or facilitating the use of electronic
• Provide equal treatment for fostering
  economy and efficiency in international
• Provide media-neutral environment

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 General Agreement on Tariffs
     and Trade (GATT)
• GATT is a multilateral treaty that aims to
  promote trade - 134 members
• Nation States are attempting to remove
  trade barriers
• EC commentators have expressed the hope
  that nations will create regulations to avoid
  the delays and problems associated with the
  implementation of the GATT principles
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OECD Organisation for Economic
 Cooperation and Development
• 29 member countries
• EC features in OECD’s plans for economic
  growth and improved social conditions
• EC        featured       in      Conference
  “A Borderless World - Realizing the
  Potential of Global Electronic Commerce”.

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 Building trust for users and consumers
    protect privacy and collection of personal data
    secure encryption programs
    full and fair disclosure of essential information

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 Establishing ground rules for the digital
    equivalent, transparent and predictable
    taxation
 Enhancing the information infrastructure for
  electronic commerce
    telecommunication
 Maximising the benefits
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• Declaration on Protection of Privacy on
  Global Networks
• Declaration on Consumer Protection in the
  Context of Electronic Commerce
• Declaration on Authentication for
  Electronic Commerce
• Joint declaration on taxation and electronic
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  OECD guideposts for efficient
     and equitable taxation
• Similar transactions should be taxed in the
  same way
• Minimisation of administrative costs and
  compliance costs
 Transparency
 Minimisation of tax evasion and avoidance.
 Structural tax changes for a fair sharing of
  the tax base between countries
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Asia Pacific Economic Cooperation (APEC)

• Established in 1989 - 21 members
• EC mission statement to promote EC in the
• Recommendations
   –   technical cooperation
   –   capacity building
   –   public sector use of EC
   –   outreach programs
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• Ministers approved a Reference Framework
  for Action on EC

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International Chamber of Commerce (ICC)

 • Paris based organisation - promotes
   interactive trade and investment and the
   market economic system worldwide
 • Proposed guides and model laws
     – GUIDEC (General Usage for International
       Digitally Ensured Commerce)
     – ICC Model Clause for Use in Contracts
       Involving Transborder Data Flows

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                ICC - GUIDEC
• November 1997 - ICC issued GUIDEC
• Guidelines for ensuring trustworthy digital
  transactions over the Internet
• Procedures for "ensuring" messages to
  certify transactions
• Governs the use of public key cryptography
  for digital signatures and the role of a
  trusted third party - called a certifier
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 The Free Trade Agreement of
    the Americas (FTAA)
• Joint Government - Private Sector Committee
  Of Experts On EC
• To make recommendations - to increase and
  broaden the benefits of EC
• Working guidelines.

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International Telecommunication Union

• Intergovernmental organisation - public and
  private sectors
• The ITU adopts international regulations
  and treaties
• Recommends medium-term policies and
  strategies to national administrations.

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International Organisation for
    Standardisation (ISO)
• World-wide federation of national standard
• Mission - to promote the development of
• Over 2,700 technical committees

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National Policies and Approaches in relation
 to Electronic Commerce and the Internet
  •   USA
  •   Singapore
  •   China
  •   Hong Kong
  •   European Union
  •   Japan
  •   Australia
  •   Canada
  •   Thailand
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• In July 1997 President Clinton stated:
• “…the United States will work through the World
  Trade Organization to turn the Internet into a free-
  trade zone within the next 12 months…. We will
  advocate as we seek to establish basic rules for
  international electronic commerce with new
  regulations and no new discriminatory taxes”.
• Continued through to 2009

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• A Framework for Global EC
• Administration’s strategy for fostering
  increased confidence in electronic networks
  for commerce
• Consultaion beforehand

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• Five principles to guide the evolution of EC
• 1. Private sector to lead - market driven - self-
 2. Governments should avoid undue
  restrictions, involvement or intervention on EC

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 3. Ensure competition, protect intellectual
  property and privacy, prevent fraud, foster
  transparency and facilitate dispute resolution.
 4. “Bottom up governance”
 5. The Internet is global - the legal framework
  should be consistent in all jurisdictions.

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• Taxes and tariffs: free environment -
  uniform approach across jurisdictions.
• Electronic Payments System: flexibility
• Uniform Commercial Code for EC:
• Intellectual Property Protection: WIPO
  treaty on copyright protection be ratified

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• Privacy: essential if people are to be
  comfortable using the Internet
• Security: Global Information Infrastructure
  (GII) must be secure and reliable
• Telecommunications infrastructure and
  information technology: US will work to
  remove barriers to competition, choice,
  lower prices and improved service
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• Content: Industry self-regulation but will
  encourage user friendly filtering and
  blocking technology
• Technical Standards: the marketplace, not
  governments, should determine technical
  standards for interoperability on the Internet

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• The National Conference of Commissions
  on Uniform State Law (NCCULS) drafted
  the Uniform Electronic Transactions Act
  which is in line with the general principles
  set out in the UNICITRAL Model Law

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• Detailed
• Pioneer

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• Xenophobic approach
• The Computer Information Network & Internet
  Security, Protection and Management
  Regulations approved December 1997
• Sets up a registry for uses computer information
  networks or the internet - Ministry of Public Security.

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• Provide secure, protected and managed
  networks to carry out technical measures of
  network security and protection and to
  provide security education and training
• Stated purpose:
   – strengthen the security and the protection of
     computer information networks and of the
   – to preserve the social order and social stability
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• “The Ministry of Public Securities shall
  protect the public security of computer
  information networks and the Internet as
  well as protect the legal rights of Internet
  service providing units and individuals as
  well as the public interest”

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• Concern of the Internet:
   – national security
   – disclose state secrets
   – harm the interest of the state or society or of a
     group, the legal rights of citizens or to take part in
     criminal activities
   – overthrowing the government, harming national
     unification, hatred and discrimination, sexually
     suggestive material, gambling, violence and murder
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• Import or export of encryption programs
  must obtain a licence

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                Hong Kong
• Hong Kong maintains separate laws for
  economic and trade matters including
  export and import controls.
• See the Sino British Joint Declaration and
  Basic Law of Hong Kong Special
  Administrative Regime passed by China

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                European Union
• For a description of recent initiatives by the
  European Union see:

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• Ministry of Trade and Industry issued”
   – “Towards the Age of Digital Economy, For
     Rapid Progress in Japanese Economy and
     World Economic Growth in the Twenty First

• The paper outlines the government's
  approach to EC

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• Opted for a self regulation approach
• Set up committees and working groups with 240
  major companies
• Issues on the agenda include consumer rights,
  privacy and electronic payment systems

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• The Electronic Commerce Promotion
  Council Guidelines for Consumer
  Transactions emulate the ICC Internet
  Guidelines Relating to Advertising and
  Marketing on the Internet.

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• Electronic Transaction Act 1999 (Cth) -
  December 1999 - based on the UNCITRAL
  Model Law
• Application severely limited because
  Australia is a federation
• Australian law is ill-equipped to deal with
  contracts and transactions in cyberspace.

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• Light-handed regulatory regime
• Media and technology neutrality

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• Act to recreate “in cyberspace the same
  expectations of trust, confidence, and
  reliability that now exists in everyday

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    International Chamber of
         Commerce ICC
• ICC promotes interactive trade and investment
   and market economic system worldwide
• General Usage for International Digitally
   Ensured Commerce GUIDEC
• General framework for “ensuring” and
   “certification” of digital messages, based upon
   existing civil and common law treatment of
   the subject as well as pertinent international
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• The GUIDEC system - appointment of
  trustworthy third parties (Certifiers)
• issue certificates which receiving parties
  can rely upon verifying that the ensuring
  party has the ability to contract
• ICC has also issued revised guidelines for
  advertising and marketing on the Internet
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• Types of transactions include:
   – transactions involving physical goods (for
    transactions involving non electronic services
     (law, accounting, consulting)
    transactions involving electronic services
     (Yahoo, software design)
    transaction involving information (Newspapers,
     Lexis, pornography)
    financial transactions (internet banking, internet
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•   Right to Collect Taxes
•   Internet Taxation
•   Taxation Methods
•   USA
•   Australia
•   New Zealand
•   United Nations
•   Cause and Effect
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ICC Model Clauses For Use In
    Contracts Involving
  Transborder Data Flows

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The Law of Electronic Commerce
and Issues of Electronic Contracts
  - An International Perspective

• Alan Davidson
• University of Queensland
   – TC Beinre School of Law
• Solicitor and Barrister

Alan Davidson                        49

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