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Stuart S. Malawer
[E]lectronic commerce creates new challenges and opportunities for trade for members at all stages of development, and we recognize the importance of creating and maintaining an environment which is favourable to the future development of electronic commerce. . WTO / DOHA Declaration (Nov. 2001).
Electronic commerce (business transactions on the Web) and the information technology (IT) industries that make e-commerce possible are growing and changing at breathtaking speed, fundamentally altering the way Americans produce, consume, communicate and play. . The Emerging Digital Economy II (1999)
(T)he Internet will make trade and international business far easier than ever before . In trade policy we are developing broad principles through specific objectives at the WTO . . E-Commerce in American Trade Policy, (June 1999)
The pace of technological development and the borderless environment created by the Internet drives a new paradigm for government and private sector responsibilities. Creating the optimal conditions for the new digital economy to flourish requires a new, much less restrictive approach to the setting of rules. . Emerging Digital Economy (1998)
Todays global economic landscape is defined by two main features -- the vast impact of the information technology revolution and the dramatic expansion of international trade. The Internet is redefining business models worldwide and creating new paradigms and economic transactions.
. Former Governor James S. Gilmore, III, Governor of Virginia and Chairman, Federal Commission on Internet Taxation (1999).
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Private sector favors a market-led, market-driven & self-regulatory environment. General consensus emerging that need some global governance to avoid chaotic & divergent national regulation. No consensus as to application of trade rules or WTO disciplines to Internet trade & commerce. (Internet-trade specific or technologically neutral.) Basic Problems for the WTO: Definition of Internet trade -- Trade in Goods or Trade in Services? Revise the existing agreements or a new unique one (Trade Related to Economic Commerce / TREC)? Newer Issue Where states are enforcing national policies at odds with the policies of the home states of Internet companies. E-Gambling (new 2006 U.S. legislation & EUs threat to bring WTO claim. Continuing Issue -- Regarding the backbone of the Internet Global telecommunications still primarily American (ICANN)but have growing interest in changing this through international institutions (ITC).
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Transnational Transactions & Multijurisdictional Legal Issues Private Transactions & Litigation.
Online sale
U.S.
Publication of article
EU
Suit filed in EU
Case #1 -- Place of Contract (Contract). Case #2 -- Place of Publication (Tort). Case # 3 Place of Sale (Tax). Location of Server & Company in U.S.
Case #1 Consumer accesses websites. Case #2 -- Individual claims libel action. Case # 3 Requires payment of sales tax. ISSUES: Jurisdictional Issue. Choice of Law. Judgment Enforcement.
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Newer Internet Issue. Global Web Transactions & Foreign Law Compliance. (A Growing Foreign Policy Issue.)
Yahoo Case
U.S.
Advertising Sale of Good
France
Newer 2007 Case: YouTube & Copyright of clips (Belgium court case).
WSJ Case
U.S.
News Articles
Australia
Foreign civil law subjects news coverage to jurisdiction & liability. Foreign criminal law restricts certain coverage (censorship).
Pending Problem.
U.S.
News Articles
China
Issues: The impact of national law on global Internet transactions? What is the role of domestic law in restricting such transactions? This is a growing & major foreign policy issue. Clash of local & global interests. Problem of a decentralized legal system in dealing with global actions no final arbiter.
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Technical
Past
Present
Future
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Global trade institutions are only now beginning to address the dramatic challenges of Internet trade and electronic commerce. Framing policy issues and contending principles by various international institutions are now only in its infancy.
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U.S. Government
Some Early Documents: A Framework for Global Electronic Commerce (July 1997). First Annual Report of the U.S. Government Working Group on Electronic Commerce (November 1998). The Emerging Digital Economy (1998, 1999, 2000). States have been active in considering a broad range of legislation impacting Internet transactions, such as the Uniform Computer Information Technology Act (UCITA) that concerns licensing of software. Virginia is one of the few states to have adopted it. (2000). Some recent federal legislation: E-signatures (digital signatures) now authorized. Electronic Signatures in Global and National Commerce Act. (2000). The 1998 Digital Millennium Copyright Act imposes new restrictions on violating digital copyrights extraterritorially.
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N.Y.
Online Sale. Buyer Problem: Collection of Sales Tax. [States need the money. Budget crisis.] S. Ct. does not require outof-state collection of another states sales tax.
Virginia
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European Union.
Some early documents: Then Need for Strengthened International Cooperation (1998). E-Commerce -- 1st Communication (1999). Lisbon Conference -- Internet (2000). Major points: Issues concerning the Internet have progressed from technical to commercial to legal. Consumer jurisdiction. The electronic marketplace requires an appropriate framework. Global uncertainty (with different subnational, national and regional responses) will hamper the electronic marketplace. Want the WTO to give this comprehensive consideration: Electronic transmissions across borders. Data protection systems. Competition.
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Some Recent Developments: The U.S. & the EU have agreed upon an accord as to electronic data privacy Safe Harbor . EU commences taxing some Internet transactions. Lisbon Summit (2000) set reforms to counter U.S. domination of Internet Revolution. Internet Management, 1998-2000, (Commission Communication) Provisions for consumer jurisdiction in Internet litigation. *EU Web site for E-Commerce: http://europa.eu.int/information_society/topics/ebusiness/ecommerce/index_en.htm *E.U. Web site on Legal Aspects of E-Commerce: http://europa.eu.int/information_society/topics/ebusiness/ecommerce/8epolicy_elaw/law_eco mmerce/index_en.htm European Union: http://europa.eu.int/index_en.htm
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E-commerce link on the WTO Website: http://www.wto.org/english/tratop_e/ecom_e/ecom_e.htm Declaration on Global Electronic Commerce (May 1998) requests work program (& moratorium / standstill on customs tax on electronic transmissions. http://www.wto.org/english/tratop_e/ecom_e/mindec1_e.htm General Council established work program (Sept. 1998). Issues not resolved at Seattle Ministerial (Nov. 1999) or DOHA Ministerial (Nov. 2001). ECommerce is part of DOHA agenda. http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm#electronic EU believes that e-commerce can be enhanced if WTO members make deeper market opening commitments on commercial services generally (greater liberalization). WTO held a seminar in 2002 on the revenue aspects of global e-commerce and impact on development for LDCs.
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Private sector (computer and telecommunication firms) beginning to organize transnationally to influence global institutions -- as to global governance initiatives concerning E-commerce & trade. The GBDe (Global Business Dialogue on Electronic Commerce), one of the first such transnational alliances, was formed in early 1999. It consists of the worlds leading computer and telecommunication firms. Attempting to reach a joint approach on behalf of U.S., European and Asian firms concerning self-regulation of all aspects of online commerce. Attempting to overcome national and cultural differences. Website for GBDe (specifically for E-commerce): http://www.gbd.org/ Website for Global Economic Forum (general): http://www.weforum.org
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It embodies the spirit and dynamic features of the digital age. Today, the GBDe is increasingly recognized as one of the world's leading private sector voices on e-commerce policy. Within an extremely short period of time the GBDe has created a process which is truly global in scope; demonstrated the willingness of the private sector to engage seriously in the policy development process; and issued detailed, consensus-based recommendations on crucial e-commerce issues.
[ From GBDe website. ]
Concluding Suggestions.
Global governance via the WTO & other global institutions. Need cooperation of sovereign governments. Need to ensure that global action fosters harmonization in order to ensure a restriction-free system. WTO to consider sufficient agreements that addresses the service / goods issue. Private sector to organize transnationally to engage the various international institutions. Governments and global institutions to be an enabler of a market-driven system. International institutions other than the WTO such as WIPO, ITU, UNCITRAL, OECD, UNCTAD & ISO need to play complementary roles. The role of ICANN is still undecided as to global governance (and not unilateral U.S. governance) as relating to the Internet backbone and domain names. [World Summit on Information Society -- ITU.]
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Several Articles.
Malawer, "The Digital Global Economy." (NYSBA 1998). Malawer, "Internet Commerce & Trade Policy," 48 Virginia Lawyer 46 (June / July 1999). (Click here) Malawer, "Domain Names & Global Trade." (May 2000). (Click here) Malawer, "Global Governance of E-Commerce & Internet Trade: Recent Developments," 50 Virginia Lawyer 14 (June / July 2001). (Click here.) "Who Controls the Internet? Foreign Affairs (Nov. / Dec. 2005).
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In
conclusion, the inherently transnational nature of global computer networks and the Internet must lead to greater and more creative international cooperation . (A)s Internet trade enters a more legalistic era, newer rules need to be clearly enunciated. Those rules should follow and reflect market forces.
.. Malawer, Internet Commerce & Trade Policy, (July 1999)
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