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Overview of Selective Legal and Regulatory Issues in Electronic Commerce

Overview of Selective Legal and Regulatory Issues in Electronic Commerce. Dr. Carlos Moreno Curaçao 25-27 June 2002. E-commerce Legal Issues. Legal uncertainties Basic legal infrastructure for building trust International solutions Policy considerations. Legal issues.

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Overview of Selective Legal and Regulatory Issues in Electronic Commerce

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  1. Overview of Selective Legal and Regulatory Issues in Electronic Commerce Dr. Carlos Moreno Curaçao 25-27 June 2002

  2. E-commerce Legal Issues

  3. Legal uncertainties Basic legal infrastructure for building trust International solutions Policy considerations Legal issues

  4. Recognition of Electronic Messages • writing • document • original • signature

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

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

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

  8. Legal recognition of e-messages E-signatures legislation Online dispute resolution Basic Legal Infrastructure for Building Trust

  9. Source: “New Yorker”

  10. Data origin authentication Message integrity Non-repudiation Electronic SignaturesFunctions

  11. 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. Legislative Approaches

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

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

  14. International solutions I - Model laws/guidelines • UNCITRAL Model Law on • Electronic Commerce • UNCITRAL Model Law on Electronic Signatures • EU Directives on ElectronicCommerce

  15. 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).

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

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

  18. International solutions III - Code of Conduct - Self regulation • OECD work • UN/CEFACT Model IV - International Convention Draft UNCITRAL Convention on e-contracting

  19. 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. Policy Considerations

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