Introduction to E-Commerce Law

Module 2 - International Regulations - Treaties and International Organizations

NARRATIVE

ASSIGNMENTS

SUPPLEMENTAL DOCUMENTS

LINKS

IBLS ARTICLES

NARRATIVE

The cross-border sale of goods and services, the transfer of intellectual property, the licensing of the tools of electronic commerce are the topics of international treaties and agreements, which are among the primary sources of international law. Trade and commercial relations on the international scene have been the basis of cooperation between non-governmental and governmental entities to create international agreements that are the predecessors of electronic commerce developments that are currently in the news.

Other names of international organizations and treaties that should be known to the Internet Attorney include OECD, NAFTA, UNCITRAL and UNIDROIT. It is also worth noting the role of the European Union regarding e-commerce regulation. The Directives adopted by the E.U. Commission such as the Distance Selling Directive or the Data Protection Directive affect Internet actors, and in particular e-businesses.

All existing laws, treaties and international regulations that apply to traditional commerce apply equally in an electronic environment. In addition to complying with the laws of the jurisdiction where they carry on business, e-commerce companies involved in international markets should be aware of the implications of doing business in foreign jurisdictions.

This Module examines the legal and institutional aspects of today's global e-commerce system. This examination is conducted from a global perspective, with references to worldwide legislation. In particular, this Module focuses on the critical issues concerning domain names and domain names registration, with emphasis on the role of international organizations such as the ICANN. All relevant links can be found at the links below.

University, Fletcher School of Law and Diplomacy web page by the Edwin Ginn Library.

Access to treaties by subject on the Internet Society page

Hippos in the parlor. While we admire the strength and beauty of large beasts we usually hope that they would not visit us too long, or get too involved in our daily lives. Some renowned non-governmental organizations (NGOs) are the World Intellectual Property Organization (WIPO), the Organization for Economic Co-Operation and Development (OECD) and the World Trade Organization (WTO). The International Chamber of Commerce (ICC) is also helping the international community to develop unified policies for international trade and dispute resolution.

The World Intellectual Property Organization (WIPO) defines itself as “a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest.” WIPO was created in 1967 to protect intellectual property rights at an international level with the cooperation of its member states and government organizations. The intellectual property services provided by WIPO are, copyrights, trademarks, domain names dispute resolution, appellations of origin, designs, protection of state emblems, arbitration and mediation center and international classifications.

The Organization of Economic Co-operation and Development (OECD). “Building Partnerships for Progress” is the motto for the OECD. With thirty Member Countries with activities in seventy “other countries, NGOs and civil society,” the OECD has global reach. Taxation of E-commerce is just one of the many OECD’s areas of study. Relevant OECD white papers on e-commerce taxation have influenced countries in their adoption of taxation policies for internet transactions within their borders.

From one of their publications:

What is the OECD?

The Organization for Economic Co-operation and Development (OECD) groups 30 member countries in a unique forum to discuss, develop and fine-tune economic and social policies. It helps member governments identify good practice in managing their own economies, as well as aiding members and non-members to draw up ground rules for the 21st century globalized economy.

The WP9 Sub-Group on Electronic Commerce has devised a strategic plan for 2001 thru 2003 that focuses on:

This plan is still in effect and being developed. WP9’s assignments are parceled out to Technical Advisory Groups (TAGs). The Consumption Tax TAG and the Technology TAG have made suggestions to the Work Plan Group which resulted in a WP9 report.

One of the aims of groups like OECD is to fashion a tax policy mechanism within global commerce that will avoid a patchwork of inconsistent national tax laws.

The Global Business Dialogue on Electronic Business (GBDe) is an international organization that promotes dialogue between the private sector and the government on e-business and related matters. In its first stages, it helped to develop tax policies for internet transactions together with the OECD. GBDe is currently concentrated in four main areas of the Internet, Consumer Confidence, Cyber Security, E-government, International Micro-payments, Next Generation Networks and Ubiquitous Society Networks.

The World Trade Organization (WTO) is active in electronic commerce through its Work Programme (WP) on electronic commerce.

On September, 25, 1998 the General Council of the WTO adopted a report by the WP. The WP had been charged with the examination of “all trade-related issues relating to global electronic commerce, taking into account the economic, financial, and development needs of developing countries…” The report was to be reviewed by the Council for Trade in Services, the Council for Trade in Goods, the Council for TRIPs, the Committee for Trade and Development for issues relating to their separate applications whether GATS, GATT, TRIPS, and other issues related to SMEs (small- and medium-sized enterprises). This report is still influencing the world’s e-commerce policy.

The International Chamber of Commerce has been in the forefront of world trade regulation with products like Uniform Customs and Practice for Documentary Credits, and INCOTERMS, for the regulation of cross-border shipping. ICC’s current focus includes an initiative on Contractual Clauses for the Transfer of Personal Data and Jurisdiction. Its Task Force on Applicable Law in Electronic Commerce produced a report that deals conceptually with basic questions of International Trade. One of the opening questions of the Task Force report was: “Has the merchant created a virtual storefront in the buyer’s jurisdiction to make a sale, of has the purchaser virtually traveled to the seller’s jurisdiction to make a purchase?” This seems to be the kind of Meta questions that need to be wrestled with prior to grand schemes by world bodies.

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ASSIGNMENTS

Discussion Board

How do you see national interests regarding the regulation of cross-border electronic commerce being played out in the international forums? Choose WIPO, OECD, WTO. If you have another international organization that you would like to discuss, please obtain pre-approval from the instructor.

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SUPPLEMENTAL DOCUMENTS

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LINKS

Some of the databases that you will eventually be visiting include:

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IBLS ARTICLES

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