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Brief Overview of Selective Legal and Regulatory Issues in Electronic Commerce

United Nations Conference on Trade and Development. Brief Overview of Selective Legal and Regulatory Issues in Electronic Commerce. Geneva, 14 June 2001 Dr. Carlos Moreno. Legal issues. Legal uncertainties Main commercial legal obstacle Basic legal infrastructure for building trust

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Brief Overview of Selective Legal and Regulatory Issues in Electronic Commerce

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  1. United Nations Conference on Trade and Development Brief Overview of Selective Legal and Regulatory Issues in Electronic Commerce Geneva, 14 June 2001Dr. Carlos Moreno

  2. Legal issues • Legal uncertainties • Main commercial legal obstacle • Basic legal infrastructure for building trust • International solutions • Policy considerations

  3. Legal uncertainties I - Commercial law issues • writing • document • original • signature

  4. Legal uncertainties Commercial law: Evidentiary value of data messages,storage of data messages, validity and formation of contracts, incorporation of general terms and conditions.

  5. Legal uncertainties II - Intellectual property issues WIPO Treaties and Domain Names III - Consumer protection OECD Guidelines IV - Authentication and security Electronic signatures legislation V - Jurisdiction and applicable law ADR/ODR Mechanisms

  6. Legal uncertainties VI - Taxation WTO standstill on customs duties on e-transmissions. VII - Internet content regulation EU Commerce Directive (ISPs) VIII - Computer crime Criminal legislation. IX - Data privacy OECD Guidelines, Council of Europe Conv. EU Directive, US legislation... .

  7. Main legal obstacle Negotiability • Need for physical possession of original document. • Documents are negotiable: • common law (i) statute (ii) custom • civil law open system

  8. How to establish a functional equivalent replicating the “uniqueness” of the document ? Contractual solution (Central Registry)

  9. Electronic SignaturesFunctions • Data origin authentication • Message integrity • Non-repudiation

  10. Legislative Approaches • Minimalist: removes legal obstacles to recognition/enforceability of e-signatures. • Digital signature: establish legal framework for PKIs. • Two-tier: standards for the operation of PKIs and broad view of e-signature.

  11. Online Dispute Resolution (ODR) • Online Settlement • Online Arbitration • Online Mediation • Online Resolution of Consumer Complaints

  12. Legal solutions • National legislation; • International legal instruments; • Contractual solutions; • Self-regulation.

  13. International solutions I - Model laws/guidelines • UNCITRAL Model Law on • Electronic Commerce • UNCITRAL Uniform Rules on Electronic Signatures • EU Directives on Electronic Commerce

  14. But…... UNCITRAL Model Law might not be sufficient to overcome legal obstacles arising from mandatory international conventions. (Vienna Convention on the Law of Treaties, 1969).

  15. International solutions II - Contractual approaches • European Model EDI Agreement • ECE Model Interchange Agreement • ECE Electronic Commerce Agreement

  16. Problems encountered by contractual solutions (i) Obligations arising from mandatory legislation. (ii) Rights and obligations of third parties. (iii) Communication in an open network.

  17. International solutions III - Code of Conduct - Self regulation • OECD work • UN/CEFACT Model IV - International Convention ?

  18. Policy Considerations • There is a need for a favourable legal environment to accommodate e-commerce; • Governments should not over-regulate; • Legislation adopted should be technology-neutral; • Party autonomy should be preserved.

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