Technology, E-Commerce and the Emerging Harmonization: The Growing Body of International Instruments Facilitating E-Commerce and the Continuing Need to Encourage Wide Adoption
International Trade and Business Law Review, Forthcoming
Posted: 16 May 2013
Date Written: December 3, 2012
Worldwide e-commerce sales will soon reach $963.0 billion. In the U.S., Goldman Sachs predicts 12.4% growth during the next three years to $235.3 billion in online retail sales. Imran Khan, a managing director of Goldman Sachs, writes in the report “Nothing But Net: 2011 Internet Investment Guide: “E-commerce is benefiting from several positive trends, including the continued rollout of broadband, increasing user comfort shopping online and the decline of certain brick-and-mortar retailers.” These trends, although not nearly as great, are also being reflected in the cross border e-commerce world, with respectable growth predicted in Europe in the coming years. However, consumers continue to shop close to home for a variety of reasons, such as cost, comfort and easy of return should problems arise. Consumer hesitation is only further amplified in the business to consumer cross border e-commerce sales environment as businesses remain reluctant to navigate a morass of differing practices, rules and standards.
In terms of cross border e-commerce sales, businesses often find the most mundane tasks frustrating. For example, domestic and/or regional laws often fail to recognize and enforce contracts created in an electronic environment, regional law rarely allows for the recognition of electronic transferable records and few systems have the capability (or demonstrate the willingness to spend the money to ensure) identification and authentication. Of course, these issues are only minor compared to the frustrating process of satisfying varied local requirements in terms of transport and regulatory information requirements that often require the submission of the same information to multiple sources, locations and regulatory entities. Something simply has to change if we truly intend to facilitate cross border trading. Luckily, a lot can be accomplished through the use of technology.
In response to this global need, the United Nations Commission on International Trade Law (UNCITRAL) has drafted a series of Model laws and Conventions and has launched into the morass by beginning work to harmonize electronic transferable records and identity management. This paper will seek to familiarize readers with many of the more recent legislative initiatives of UNCITRAL, such as the e-Commerce Model Law, the Electronic Communications Convention and the more recent electronic transferable records draft text. As these particular harmonization efforts are beginning to see a rapid and renewed interest, the paper will then consider the practical and economic impact of adoption in key areas of development. The paper will conclude by arguing that the more recent legislative initiatives, such as the identity management and single window harmonization must continue to garner support as the continued lack of legal predictability and technology use is hindering international trade.
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