UDK 341:339.5
Demirchyan Victoria Vaganovna
PhD in Law, Senior Lecturer of the Department international law North Caucasian branch of the Russian State University of Justice
PROBLEMS OF LEGAL REGULATION OF INTERNATIONAL ELECTRONIC TRADE
Demirchyan Viriona Vaganovna
PhD in Law, Senior Lecturer, International Law Department, North Caucasus branch of Russian State University of Justice
THE PROBLEMS OF LEGAL REGULATION OF INTERNATIONAL ELECTRONIC COMMERCE
Annotation:
The article considers the basics of legal regulation of international electronic commerce, its problems and solutions. The content of the concept of "electronic commerce" is revealed, which is not fixed by law, but is the subject of research by many legal scholars. The content of legal relations in the field of e-commerce is analyzed. It is concluded that it is necessary to develop a single unified act regulating the implementation of electronic transactions.
international electronic commerce, electronic commerce, electronic market object, legal regulation, national and international legislation.
The article discusses foundations of the legal regulation of the international e-commerce, its challenges and the ways of dealing with them. The author discusses the content of the e-commerce concept, which is not enshrined in law, but is the subject of researches of a number of academic lawyers. The content of the legal relations in the field of e-commerce is reviewed. It is concluded that there is a need for a single unified act regulating electronic transactions.
international e-commerce, e-commerce, e-market item, legal regulations, national and international legislation.
The rapid development of science and technology, as well as the integration of telecommunications into human life, have led to the emergence of a new sector of the economy called e-commerce. Today, it has become very common to make various kinds of transactions, exchange information and perform other kinds of actions via the Internet, when a person does not see his counterparty, the subject of the transaction, making settlements using electronic transfers, signing an agreement using electronic digital signature. The use of the Internet is so effective that many large companies refuse to purchase through other channels. In the United States, industry network purchasing centers (“vertical portals”) have been created in many industries: chemical, metallurgical, and automotive. These portals even unite competing enterprises (for example, Ford and General Motors). The Internet significantly reduces the cost of selling products or providing services. Thus, the cost of a typical banking transaction with the direct participation of a bank employee is $ 1.25, over the phone - 54 cents, using an ATM - 24 cents, via the Internet - 2 cents. All this necessitates legal regulation of this segment of the economy, including the creation of a unified international legal platform, since feature e-commerce is its cross-border.
The term "electronic commerce" arose almost immediately after the advent of computers in the 1950s and 1960s. 20th century This was the era of "mamframe-based" applications. One of the first such applications were programs for transport - ordering tickets, as well as the exchange of data between various services for the preparation of flights.
The concept of electronic commerce is not fixed by law, which gives rise to undoubted difficulties in determining its legal essence. Russian and foreign legislation focuses on the evaluation of other concepts, such as "electronic document", "electronic digital signature", "electronic record", "information", etc. . However, in the scientific literature, scientists attempt to define e-commerce. So, under electronic commerce (e-commerce) is understood any form of business transactions in which the interaction of the parties is carried out electronically instead of physical exchange or direct physical contact and as a result of which the right of ownership or right of use
niya goods or services are transferred from one person to another. Also, e-commerce refers to any form of business process in which interaction between entities takes place electronically, or any process that a business organization performs through a network of interconnected computers. The main difference between the two basic concepts - "electronic business" and "electronic commerce" - is that the first is an activity, and the second is a set of civil law transactions.
According to the fair observation of scientists, the concept of electronic commerce in national legal systems does not have a uniform definition. Its scope varies and is determined by the extent to which national legislation pays attention to this institution. That is, if earlier national jurisdictions developed criteria for commercial law (for example, German law refers transactions made by merchants to commercial transactions, and French law defines the range of transactions related to commercial ones), now they determine the content of e-commerce.
In our opinion, e-commerce should be considered more broadly than civil law transactions through the Internet, since the latter are not the only object of legal regulation. In this regard, the concept of "electronic commerce" covers such components as electronic information exchange, electronic movement of capital, electronic commerce, electronic money, electronic marketing, electronic banking, electronic insurance services.
Thus, e-commerce is the main component of e-commerce, but these concepts should not be identified. Electronic commerce is financial transactions and transactions carried out over the Internet and private communication networks, during which purchases and sales of goods and services are made, as well as money transfers.
Legal relations arising between various entities in the field of electronic commerce are governed by the norms of both international and national legislation. International sources include the following: the 2005 UN Convention on the Use of Electronic Communications in International Contracts, the 1996 UNCITRAL Model Law on Electronic Commerce, the 2003 Declaration on the Freedom of Exchange of Information on the Internet, the European Declaration on Human Rights and the Rule of Law Rights in the Information Society 2005, the Charter for the Global Information Society 2000, the Budapest Convention on Cybercrime 2001, the Declaration of Principles for Building the Information Society 2003 and the Tunis Commitment Action Plan 2005, the General Agreement on Trade in Services (GATS) 1994 g. and others.
If we apply a broad interpretation of international law, then the sources regulating legal relations in the field of electronic commerce can also include the Convention on International Rail Transfers of 1980, the UNIDROIT Convention on International Factoring of 1988, the International Convention on the Harmonization of Controls of Goods at the Frontier of 1982. , UNCITRAL - Model Laws on International Commercial Arbitration 1985 and many others.
Despite the variety of legal norms governing legal relations in the field of electronic commerce, this area still remains regulated only fragmentarily. Above, the problem of the lack of legislative understanding of e-commerce and e-commerce was identified. From the point of view of private law relations complicated by a foreign element, there is also the problem of the lack of a single (international) interpretation of these concepts. In order to eliminate this problem, at the request of the UNCITRAL Secretariat, Professor J. Burdeau from France made an attempt to adapt international documents to the specifics of electronic commerce, expressed in the report “Adaptation to the specifics of electronic commerce of the provisions on evidence contained in international legal instruments that relate to international trade» . However, the solution to such a complex problem is so simple way impossible due to the existence of provisions of national legislation, as well as the existence of an established practice of interpreting many concepts, for example, such as “ written form”, “signature”, judicial and arbitration bodies. Thus, scientists support the point of view according to which electronic commerce does not require any special legal regulation, rather a broad interpretation of the norms of international law.
The literature has also suggested that there is currently a reassessment of the approach to the legal regulation of the Internet. Numerous works, mainly by American scientists, about the Internet as a new information and social space, where its own regulatory system of regulation is being formed and a special
the concepts of legal regulation are a thing of the past. At the same time, we will focus on the need for the so-called "point" regulation of the concept " additional protection participants of electronic commerce from fraudulent activities of third parties. The place and time of the conclusion of the contract are of great importance for determining national legislation, the choice of court in resolving the conflict.
In our opinion, this position is very correct, with the only clarification that, nevertheless, numerous legislative conflicts of national legal systems require the development of a single unified act regulating the implementation of electronic transactions. In addition, in order to develop and protect entrepreneurial activity in the information space, it is necessary to develop common rules regarding electronic economic activity, given the technical nature of e-commerce and technological possibilities its implementation.
Thus, the legal regulation of electronic commerce should be carried out in a uniform and coordinated manner so as not to give rise to a negative legal phenomenon, given technical side, as well as the cross-border nature of legal relations in this area.
1. Short course lectures on the discipline "Private International Law" [Electronic resource]. URL: http://studme.org/158407207606/pravo/mezhdunarodnoe_chastnoe_pravo (accessed 09.11.2016).
2. Novomlinsky L. E-commerce: development trends in the world and in Russia [Electronic resource]. URL: http://tops-msk.ru/press_ecom/pub_007.html (date of access: 11/11/2016).
3. Belykh V.S. Legal regulation of electronic commerce in the context of globalization [Electronic resource]. URL: http://bmpravo.ru/show_stat.php?stat=267 (date of access: 10/13/2016).
4. Shakhovalov N.N. Internet technologies in tourism [Electronic resource]. URL: http://tourlib.net/books_tour-ism/shahovalov21.htm (accessed 10/13/2016).
5. Novomlinsky L. Decree. op.
6. Polkovnikov E.V. Definitions of e-commerce and a bit of history [Electronic resource] // Polkovnikov E.V. Lectures on the course "Electronic Commerce". Lecture 1. URL: http://kpmit.wl.dvgu.ru/library/polkovnikov_lec-tures_ecommerce/l1.htm#ref5 (date of access: 11/20/2016).
7. Belykh V.S. Decree. op.
8. Bogdanovskaya I.Yu. Legal regulation of e-commerce: foreign practice[Electronic resource]: report. at the II All-Russian conf. "Law and the Internet: Theory and Practice". URL: https://www.ifap.ru/pi/02/r08.htm (date of access: 11/11/2016).
9. Yurasov A.V. Fundamentals of e-commerce. M., 2007. C. 38; Schneider G. Electronic Commerce. Boston, 2008.
10. Bukreeva Yu.A. Legal regulation of electronic commerce in Russia [Electronic resource] // Questions of modern jurisprudence: coll. Art. XV Intern. scientific-practical. conf. Novosibirsk, 2012. URL: http://si-bac.info/conf/law/xv/28742 (accessed 11.11.2016).
11. Zazhigalkin A.V. International legal regulation of e-commerce: dis. ... cand. legal Sciences. SPb., 2005.
12. Ibid.
13. Bogdanovskaya I.Yu. Decree. op.
14. Ibid.
15. Ganzha K.P. Legal regulation of e-commerce in Russia [Electronic resource] // Modern scientific inheritance and innovation: electron. scientific-practical. magazine 2013. No. 10. URL: http://web.snauka.ru/is-sues/2013/10/27833 (date of access: 11/20/2016).
Belykh, VS 2016, Legal regulation of e-commerce in a globalizing world, viewed 13 October 2016,
Bogdanovskaya, IY 2016, Legal regulation of e-commerce: foreign practice: of the reports. at the II All Russia. Conf. "Law and the Internet: Theory and Practice", viewed 11 November 2016,
Bukreeva, YA 2012, "Legal regulation of e-commerce in Russia", Questions sovremennoy yurisprudentsii: sb. st. XVMezhdu-nar. nauch.-prakt. conf., Novosibirsk, viewed 11 November 2016,
Ganja, KP 2013, "Legal regulation of e-commerce in Russia", Modern scientific inheritance and innovation: Sovremennyye nauchnyye nasledovaniya iinnovatsii: elektron. nauch.-prakt. zhurn, no. 10, viewed November 20, 2016,
Novomlinsky, L 2016, E-commerce: development trends in the world and in Russia, viewed 11 November 2016,
Polkovnikov, EV 2016, "The definitions of e-commerce, and a bit of history", Polkovnikov Ye.V. Lektsiipo kursu "Elektronnaya kommertsiya". Lektsiya 1, viewed November 20, 2016,
Schneider, G 2008, Electronic Commerce, Boston, (in Russian).
Shahovalov, NN 2016, Internet technologies in tourism, viewed 13 October 2016,
Yurasov, AV 2007, eCommerce Fundamentals, Moscow, p. 38, (in Russian).
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Ilya Kabanov
WTO members continue to seek compromise on the regulation of cross-border e-commerce. New opportunities for this are opening up in mega-regional agreements.
Currently, e-commerce is one of the key engines of economic growth and an increase in international trade. In 2013, the total volume of e-commerce in the B2C (business-to-consumer) segment reached $1.25 trillion, in the B2B (business-to-business) segment - $11.3 trillion, and the retail trade itself via the Internet - 963 billion US dollars. By 2016, the bulk of e-commerce is expected to take place in the Asia-Pacific region (39.7% of total transactions), North America (28.2%) and Western Europe (22.6%).
Regulation of e-commerce under the WTO
The beginning of the regulation of electronic commerce at the multilateral level within the WTO can be considered the 2nd WTO Ministerial Conference (1998, Geneva), at which the members of the organization adopted the Declaration on Worldwide Electronic Commerce and agreed not to apply customs duties to goods purchased using telecommunication systems . According to this Declaration, WTO members were tasked with holding discussions on e-commerce issues within the framework of three WTO bodies: the Council for Trade in Goods, the Council for Trade in Services and the Council for TRIPS. Each of these bodies considers issues of electronic commerce within its competence. Thus, the Council for Trade in Services is examining e-commerce, taking into account the provisions of the GATS, including the most favored nation treatment (MFN), national treatment, transparency, domestic regulation, market access obligations regarding the electronic supply of services (including obligations in the field of telecommunications services and distribution service). The Council for Trade in Goods considers e-commerce issues in terms of access to the market for goods, customs value, customs duties and rules of origin. The TRIPS Council considers the protection of intellectual property rights and related rights, protection trademark and access to new technologies.
In addition, a key decision was made at the 2nd Ministerial Conference on the non-application of customs duties to the transfer of goods using telecommunication systems.
Since this ministerial meeting, WTO members have made minimal progress in developing general provisions concerning the regulation of electronic commerce. The moratorium on the application of customs duties was confirmed at the 4th Ministerial Conference in Doha in 2001 and at the 8th Ministerial Conference in Geneva in 2011. In 2012-2014 issues of electronic commerce were raised during negotiations to expand the scope of the Agreement on information technology. In particular, it was proposed to fix a zero customs duty rate for certain types of software(software), including software for GPS/Glonass.
E-commerce is affected by WTO members' market access and national treatment obligations, as well as GATS regulatory principles in the telecommunications sector. Important is the Annex on telecommunications to the GATS, which gives the right to access and use common telecommunications networks and services, regardless of the obligations assumed by the state under the GATS. At the same time, WTO members undertake obligations in terms of ensuring the confidentiality of transmissions and protecting the technical integrity of networks.
Difficulties in multilateral e-commerce negotiations relate to the following issues: the choice of an underlying regulatory agreement, the classification of certain types of telecommunication transmissions, the taxation of e-commerce, the relationship (and possible substitution process) between e-commerce and traditional forms of trade, customs duties, competition and application of national law.
The lack of consensus on the scope of e-commerce under existing WTO agreements is a key issue for the development of new rules in this area. For example, discussions in the Council for Trade in Services have shown that most of the commitments that can apply to e-commerce were made when it was just beginning to develop and are now a significant barrier. As a consequence, this will require their revision or abandonment of the application of the GATS to electronic commerce.
On the other hand, the issue of assessing e-commerce as a mode of supply of services was partly resolved in Antigua and Barbuda v. the United States in relation to the provision of gambling services over the Internet. The dispute resolution body ruled that the provision of services over the Internet constituted a cross-border supply of services (mode 1 under GATS).
WTO Members have not yet reached a common understanding of whether “digital products” (e.g. software, music, films, etc., which can be downloaded from the Internet or sold on physical media) are goods or services, or what kind of agreement WTO they should be regulated.
Another source of controversy is the issue of "technological neutrality" in relation to e-commerce, where a state cannot discriminate against one technology for the benefit of another.
Discussions about the classification of digital products are partly related to the WTO moratorium on the collection of customs duties on goods purchased using telecommunications systems. Members of the WTO discussed when a permanent tariff ban should apply and when it is technically possible and should apply. With the US and EU positive about the moratorium itself, the EU wants to make it permanent, provided that the purchase of digital products is considered a service.
As a result, due to the lack of a unified regulation of electronic commerce within the multilateral trading system, the significant complexity of the subject of regulation (in particular, the impossibility of applying only the rules of trade in goods or trade in services), as well as the need to take active measures to protect intellectual property rights, states include sections on e-commerce in Free Trade Area Agreements (FTAs).
Regulation of e-commerce in regional agreements
In FTA agreements, two relatively opposite approaches to the definition of the subject of electronic commerce are clearly visible: American and European.
The US sees e-commerce as a generalization of all digital goods and prefers to use rules similar to GATT for such “downloadable” goods. In turn, the EU claims that the content of electronic commerce, as a particular and specific case of wholesale and retail, refers to services. The European Union explains its position by the fact that the subject of electronic exchange, such as cinema, is not delivered in a physical format and, as a result, such a transaction should be regulated by the GATS.
It should also be noted that, in relation to audiovisual services, a limited number of GATS commitments have been made by EU Member States. The main problem is that if we consider this species product under the GATT rules, then this will automatically lead to the extension of the principle of national treatment to it. This situation is related to the EU's reluctance to open up its market for films, TV shows, radio or other audiovisual and cultural services to foreign providers. The EU promotes the concept of "cultural exclusivity", according to which cultural goods and services should be excluded from the scope of international treaties and agreements. At EU level, this concept is reflected in the Audiovisual Media Services Directive, which contains measures to promote European media content within broadcast and video hosting services.
The presence of such significant contradictions between the European and American approaches to the definition of the subject of electronic commerce has led to the fact that the regulation of electronic commerce in the FTA agreements already concluded by the US and the EU differs significantly.
The American approach is characterized by the inclusion of provisions on the provision of digital goods with MFN and national treatment, as well as rules on regulating issues of electronic authentication and digital signature, personal data protection, which is primarily related to the protection of the interests of American companies in this area. It is worth noting that in order to increase the access of consumers from other countries to e-commerce goods, the United States included an article on the principles of access and use of the Internet for e-commerce in the latest FTA agreement with Korea. Korea, in turn, has achieved the inclusion of an article on consumer protection.
The EU considers e-commerce as a private way of buying, selling and distributing goods, so consumer protection is at the forefront of its interests. EU FTAs include e-commerce provisions in the Trade in Services and Investment chapter, which allows the use of lists of obligations to regulate access to internet services and product marketing. These agreements also contain articles on consumer protection and personal data protection. An example of the difference in approach is the fact that buyers of digital goods in the "iTunes Store" in the EU have the right to return purchases within two weeks without giving reasons. At the same time, for users in the United States, as well as in Russia, such a right is not provided.
As a result, the world community approached negotiations within the framework of mega-regional agreements with two practically opposite approaches. It should be noted that the situation is not as critical as it might seem at first glance. First, these approaches include a number of similar provisions that can act as a link, such as articles on transparency and international cooperation, the abolition of customs duties on digital goods, and the application of WTO rules to electronic commerce.
Secondly, due to the fact that the United States is the main driving force in the framework of the Trans-Pacific Partnership (TPP), it can be assumed that many issues related to e-commerce will be considered through the prism of the American approach. An additional argument is that the US already has FTAs, including a section on e-commerce, with Peru, Singapore, Korea, Australia, and Chile.
The basis for the E-commerce section of the TPP is the aforementioned US-Korea FTA Agreement. According to the US Trade Representative, this section will include provisions for the prohibition of customs duties on digital goods, as well as electronic authentication and consumer protection. The key issues under debate are the granting of MFN and national treatment to digital goods and ensuring the freedom of information flows. According to unconfirmed reports, the negotiations may also discuss the issues of taxation in relation to e-commerce.
With a high probability, the issue of regimes regarding digital products will be resolved in favor of the United States on the basis of the provisions of the FTA agreements previously concluded by this country.
With regard to the provisions on information flows, the result is still difficult to predict. The main problem is the departure of the United States from the relatively soft obligations that are used in the FTA Agreement with Korea. In particular, they seek to provide guarantees that the parties will not introduce requirements for the localization of the storage of personal data. According to the latest data, in order to find a compromise from under the action this provision it is supposed to display information related to the payment of taxes, health care and finance. But even such a decision comes into serious conflict with the existing national legislation of a number of countries in the field of personal data protection.
Third, the outcome of the Transatlantic Trade and Investment Partnership (TTIP) negotiations could lay the groundwork for a common approach to regulating e-commerce. According to the draft agreement, the EU and the US are looking for a compromise position that electronic transmissions are the provision of services, and therefore they are not subject to customs duties and may be subject to national treatment and MFN. This approach satisfies both the US (because it guarantees the absence of customs duties and the chance to promote its “digital goods”) and the EU (because it considers e-commerce as a type of product marketing). At the same time, this is the only compromise reached so far.
Remaining controversies relate to the definition of the subject of regulation (good or service), the application of the MFN and national treatment in relation to digital products, and the provision of consumer protection. Overcoming contradictions is possible only within the framework of the TTIP due to the fact that its participants are the US and the EU, which determine modern approaches to the regulation of e-commerce. Achieving a compromise solution will lead to the formation of a unified approach to the regulation of this issue, which in the future may turn into a separate agreement within the WTO. If a compromise turns out to be unattainable, we can expect the consolidation of the American approach in the Asia-Pacific region. This will make it dominant in this issue, but at the same time without a chance of becoming global due to a contradiction with the position of the EU.
For the EAEU, the combination of European and American approaches is of greatest interest, which will protect Eurasian consumers and promote digital goods produced in the union on world markets. This is due to the fact that the EAEU member states are both consumers of goods purchased through electronic commerce and active participants in the software and other digital content market.
Ilya Kabanov - consultant of the Eurasian Economic Commission
By now, it has become obvious that the successful development of e-commerce on the basis of the current legal regulation is very problematic, and in some cases even impossible. The need to adapt international and national law to the specifics electronic document management became apparent about twenty years ago. However, even today, the use of electronic means of communication in the course of commercial transactions is expanding much faster than the legal framework is being formed to ensure the use of this technical innovation.
On the one hand, it cannot yet be considered that e-commerce will require large-scale and fundamental changes in the legal regulation of commercial turnover. On the other hand, a number of well-established legal structures and legal norms reflecting them turn out to be inapplicable in the conditions of using electronic means of communication. E-commerce has challenged the traditional understanding of categories such as "document", "writing", "signature" and some others associated with them. However, the need to clarify these concepts is only the top layer of the problem. On a broader plane, the question arises of clarifying the terms of transactions in electronic form. Apparently, there was a need to clarify the content of such categories as “subject of the transaction”, “parties of the transaction”, “place of the transaction”.
These problems affect both domestic and international commercial transactions. At the same time, in relation to international commercial turnover, there are many specific issues that need special regulation. The need to determine the law applicable to electronic transactions may require the establishment of special conflict-of-law bindings designed for such cases. In addition, questions about the location of the parties to electronic contracts, jurisdiction (cognizance) and the procedure for resolving disputes in the field and e-commerce need to be resolved.
The lack of adequate legal regulation not only hinders the development of commerce in electronic form, it sometimes hinders the introduction of new mechanisms for the implementation of trade and economic activities. The current situation does not stimulate the expansion of electronic business transactions, does not provide participants with the same protection and awn as in conventional transactions.
Streamlining electronic commerce has been the subject of special consideration by many intergovernmental and non-governmental international
However, such a wide range of bodies and organizations involved in the regulation of e-commerce has not only positive, but also negative sides. To date, there is no coordination of work and coordination of positions even on general aspects of the problem, in the activities international organizations duplication often occurs.7 When addressing certain aspects of e-commerce in relation to the subject of their activities, many international organizations turn to specific issues, which prevents a consistent understanding of e-commerce as a whole. Meanwhile, such a unified interpretation is necessary, especially with regard to the ways and means that can be used to form an adequate legal framework.
Attempts to unify national legislation in this matter have so far not yielded tangible results. National acts based on the 1996 Model Law have been adopted by a small number of states so far.
In addition, certain norms of such national acts, firstly, sometimes differ significantly from the provisions of the 1996 Model Law,8 and, secondly, may conflict with international agreements that require the use of documents in writing or establish the need for a signature. on the document.
According to the most rough estimates, there are more than 30 such international treaties.9 For the states participating in them, the provisions of these treaties concerning the written form will have priority over the provisions of national legislation. In this sense, the transformation of domestic acts on the basis of the Model Law of 1996 does little to change the situation, because this does not affect the relevant international obligations.
Notably, *nx> the potential for duplication of functions was highlighted in the Report of UNCITRAL on the work of its 36th session (June 30 - July 11, 2003), presented to the UN General Assembly. In a note attached to the report and specifically devoted to this issue, which prepared by UNCITRAL XXI and XXXV President Henry M. Joko-Smart (Sierra Leone), stating in particular: “As a representative of a country not represented in UNECE, I cannot hide my surprise at the fact that a regional body is trying global harmonization of law If the goal of ECE is to participate more actively in the work of global bodies and to have a beneficial effect on their activities by drawing attention to regional experience and standards, then this may well be useful, while coordination and monitoring will be necessary by the member States of ECE and UNCITRAL I am by no means suggesting that any obstacles be created for the activities of ECE, but only that efforts be made to to prevent dissent in the performance of the UN's functions at the global level. In connection with this constipation, the note even pointed out the need for the UNGA to confirm the mandate of UNCITRAL. 1 A more effective way of unifying national legislation on this issue was taken in the EU, where in 1999 the said Directive 1999/93/EC on the fundamentals of Community legislation on the regulation of electronic signatures was adopted. However, this act introduced a uniform legal regulation for a small group of states. In addition, this act is not entirely consistent with the 1996 Model Law.
9 A detailed analysis of the legal barriers to the development of e-commerce in international instruments relating to international trade, as well as an overview of the comments of international organizations and governments in this regard, are presented in a number of documents prepared by the UNCITRAL Secretariat. (sec: doc. UN - A/CN.9AVG.IVAVP.98. 17 July 2002, Doc. UN - A/CN.9AVG.1V/WP.98. Add.l-Add.4).
documents adopted by international organizations.14 A list of such instruments is given in a special UNECE review on this issue,15 however, it can hardly be considered complete, since it does not mention instruments related to the settlement of disputes and involving the conclusion of arbitration agreements in writing .
In the report of J.Burdo, as well as in the UNECE review, international agreements were considered that provide for the exchange of paper documents, as well as requiring a written form or signature. At the same time, the possibility of adapting the mentioned international documents to the use of electronic means and the Internet in international commercial circulation was studied.
To date, several ways have been proposed to adapt international legal documents in relation to e-commerce.
The simplest option assumes that e-commerce does not require any special regulation. At the same time, it is proposed to use an expansive (or, in the terminology of J. Burdeau, “constructive”) interpretation of the relevant international treaties. According to J. Burdeau, the texts formulated “under the conditions when it was required to fix the obligatory presentation of evidence executed or certified on paper, could, within the framework of a “constructive” interpretation, be considered extendable to documents, written forms or signatures executed in in electronic format 16 In addition, the opinion is expressed that it is hardly permissible to make adjustments to the legal regulation each time in relation to any technical innovation.
Theoretically, the possibility of applying a broad interpretation of an international agreement is based on the provisions of paragraph 3 "b" of Art. 31 of the Vienna Convention on the Law of International Treaties of 1969 (hereinafter referred to as the Vienna Convention of 1969), which provides that when interpreting an international treaty, along with the context, the
(CMR), Convention on General Procedures for Transit between the Member States of the EEC and EFTA 1987. Convention on International Railway Transfers, 1980 (COTIF/CIM), United Nations Convention on Contracts for the International Sale of Goods, 1980. Convention on Simplification 1988 UNIDRULE Convention on International Factoring 1988 UN Convention on International Bills of Exchange and International Promissory Notes 1988 UN Convention on Independent Guarantees and Standby Letters of Credit 1995. Customs Convention on international transportation goods using the TIR Carnet 1975, International Convention on the Harmonization of Frontier Controls of Goods 1982. Convention on Civil Liability for Damage Caused during the Carriage of Dangerous Goods by Road, Rail and Inland Water Transport 1989. European Agreement on International Carriage by Road dangerous goods 1957. 1 Such documents may include the MMK act - Rules for electronic bills of lading 1990; FIATA documents - Standard Conditions regarding the bill of lading for mixed non-renewals 1992; ICC - Uniform Customs and Practice for Documentary Letters of Credit (as amended in 1993), INCOTERMS (as amended in 2000); UNCITRAL - Model Laws on International Commercial Arbitration 1985, International Credit Transfers 1992; IMO - International Maritime Dangerous Goods Code (developed on the basis of the International Convention for the Safety of Life and Mors 1974); ICAO - ICAO Standards (I997/S editions); IATA - Standards for the Transport of Dangerous Goods 1997. 15
Doc. UN-ECE/TRADE/CEFACT/1999/CRP.2. Review of definitions of "Writing?", "Signature^ and "Document" employed in multinational conventions and agreements relating to international trade. 16
Doc. UN-A/CN.9/WG.1VAVP.89. 20 DC. 2000. P. 6.
The need to adapt the existing legal regulation to changing social relations is constantly drawn attention in legal science. In particular, L.P. Anufrieva points out that in those areas in which the legal regulation of social activity has been carried out for a long time, “there is a need to develop special provisions designed to be applied to previously unknown aspects of relations.”143
A special study on the need for and ways of adapting international documents to the specifics of electronic commerce, at the request of the UNCITRAL Secretariat, was undertaken by French professor J. Burdeau, who prepared a report entitled “Adaptation to the specifics of electronic commerce of the provisions on evidence contained in international legal instruments that relate to international trade ".144
In terms of its content, J.Burdot's report turned out to be wider than the stated topic, since transformations in connection with the introduction of electronic circulation require not only documents dedicated to international trade itself, but also acts regulating transport issues (air, sea and multimodal transport), transportation of dangerous goods, customs clearance and international settlements.145 At the same time, both international treaties affecting these issues146 and some other “subsequent practice in the application of a treaty that establishes the agreement of the parties regarding its interpretation” need to be clarified.147
However, it is unlikely that such an agreement of the states-participants of multilateral conventions on the issue of qualification of electronic documents can be achieved in such a simple way. There is currently no unanimity in relation to the evaluation of documents in electronic form. J. Burdeau herself understands this, pointing out that such an interpretation is unlikely to be followed by national judicial authorities.148 secondly, the established practice of interpreting the concepts of "writing" and "signature" by judicial and arbitration bodies.
It is unlikely that a “constructive interpretation” can be in direct conflict with the meaning that was put into certain concepts when developing the relevant treaty. In this regard, we recall how difficult it was to resolve the issue of the form of a transaction, for example, in the UN Convention on Contracts for the International Sale of Goods of 1980 (hereinafter referred to as the Vienna Convention of 1980).149 Since the question of the form of a transaction had for a group of states of fundamental importance, in the course of the negotiations a complex system of commitments was constructed, referring to this issue. It is impossible not to take into account the context in which these provisions were developed. The system of obligations provided for by Art. And, 12 and 96 of the 1980 Supreme Convention can be changed not by a constructive interpretation, but only by the relevant international treaty.
In other words, the rejection of the special conventional regulation of e-commerce will undoubtedly create barriers to the development of international trade and economic turnover. The lack of legal certainty regarding the legal validity of documents in electronic form introduces an element of instability into commercial relations and does not provide the level of reliability currently guaranteed by written documents. Therefore, the question does not come down to whether clarifications and additions to the existing conventional regulation are necessary, but to how they can be implemented. This position is supported by many states that are most interested in the international regulation of electronic commerce.150
The problem of adapting international treaties to new circumstances that take place after their entry into force has always existed. Accelerating the pace of social
However, one cannot agree with the statement that in this case we are talking about making minor changes: for example, the dematerialization of goods title or customs documents will entail significant changes in the entire system of regulation of relevant relations.
In addition, J.Burdo does not indicate what the special status of an “interpretative agreement” is in comparison with an ordinary international treaty. In particular, whether the "interpretative agreement" falls under the rules of international law on treaties. This question is, of course, rhetorical, since general international law does not provide for any simplified form when amending and supplementing existing treaties.
The agreement on interpretation proposes to establish new definitions of the concepts "signature", "writing", "document", "original" and some others used in commercial circulation. By expanding the content of these concepts, they could be extended to electronic documents. The advantage of an interpretative agreement, according to J. Burdeau, is that if it were signed, the states would be able to avoid the laborious and lengthy procedure for reviewing a significant number of international treaties, while solving the problem of unifying the regulation of electronic commerce.
According to J. Burdo, the merit of such a document lies in the fact that it would impose obligations on states not only in relation to international treaties, but also “documents that do not have the quality of conventions, in terms of the definitions contained in them. Thus, it could be a question of clarifying “authentic”,151 i.e., by concluding an international agreement. emanating from the parties themselves, the interpretation of the provisions of various binding instruments, regardless of the legal nature of such instruments (international treaty, derivative legal instrument or recommendation).”24
However, such a scheme for correcting documents of a non-conventional nature is quite controversial. Also doubtful are the assertions that documents of a recommendatory nature are “binding” for states, and their “authentic” interpretation can come from states. Since the majority of such documents are developed by one or another international organization and are not expected to be approved by their states, their correction or authentic interpretation can only come from the relevant organization. It appears that international organizations have certain rights to modify or interpret non-conventional documents they have adopted.25 Economic, scientific and technological developments are causing international treaties to become obsolete much faster than they used to be. In this regard, proposals are increasingly being made about the possibility and necessity of interpreting treaties in accordance with these changed conditions. UNECE has proposed “the preparation of a comprehensive protocol aimed at changing the legal regimes of multilateral treaties in order to promote the use of e-commerce”.152
The Vienna Convention of 1969 stipulates that when interpreting an international treaty, along with the context, “any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions” (clause 3 “a” of article 31) is taken into account. Therefore, theoretically, there are no obstacles to the development of a protocol that introduces a new interpretation of some terms related to the implementation of electronic commerce.
However, it is quite obvious that in this case legal and technical difficulties will arise. Firstly, because this comprehensive protocol will have to supplement not one, but several international agreements that do not coincide in terms of the subject of regulation and the circle of participants. Secondly, it seems that differences in the subject of regulation will lead to a different amount of changes and additions that will need to be made to the mentioned agreements.
Understanding how difficult it would be to develop such a comprehensive protocol, J. Burdeau suggested introducing a new kind of international treaty - an “interpretative agreement”, emphasizing that such a form should not have too high a status, similar to the existing “acts of revision”. The fact is that in many cases we are not talking about making changes that contradict the texts of already adopted documents, but only about clarifying the meaning of some terms or giving them a meaning that they could not have had at the time the treaties were drafted. “Using the form of a simple agreement on interpretation, which would be unified and common for all international documents of any legal significance,” J. Burdo points out, “it would seem that it would be possible to quite easily solve the problem of unification and at the same time not directly raise any question about a genuine change in the texts of existing treaties, nor the question of the correctness of the revision procedure.”153 Specialists of the UNECE Center for Facilitation of Procedures and Practices in Management, Trade and Transport (hereinafter referred to as CEFACT) in a specially adopted by them recommendations on this issue dated March 15, 199913
The proposed interpretative agreement also has another fundamental drawback: the circle of states that are parties to an interpretative agreement and countries that are parties to a particular convention that needs to be adjusted will most likely not be able to cope. There will be no problems if the circle of participants in the interpretative agreement is wider than the participants in the relevant convention: in this case, the rules of the interpretative agreement will be binding on all participants in a particular treaty. However, if states that have not acceded to an interpretative agreement participate in the transformed convention, then the problem of different interpretations of the norms of the convention by the participants arises.
The idea of an interpretative agreement was, in fact, already proposed at the prajugic, in the draft Convention on Electronic Contracting prepared by the UNCITRAL Working Group on Electronic Commerce.27 Article Y “Messaging under other international conventions” is included in the final provisions of the draft. According to option "L" of this article, States that accede to the Convention undertake to apply the provisions set out in Chapter III and establishing the legal regime for the use of electronic communications to the exchange of data messages that may be sent to each other by the parties in accordance with other international treaties, prepared with the assistance of UNCITRAL and listed in this article.154 At the same time, however, it is not indicated how to deal with international treaties concluded within the framework of other international organizations.
Article Y of the draft Convention on Electronic Contracting suffers from the same shortcomings as noted above in relation to an interpretative agreement and is therefore unlikely to be acceptable to States.29 In addition, it is not clear why the scope of international conventions is limited to just five , while the number of conventions regulating various aspects of the international commercial activities and not designed for the use of electronic messages in international trade, no less than thirty?
Another option for adapting international legal regulation to e-commerce involves the development of a special international treaty that establishes
It is difficult to imagine a situation in which, by agreement between a group of states, changes would be made to, say, INCOTERMS, or a special interpretation of the provisions of this document would be established. In this case, the meaning of INCOTERMS as a universal unified regulator would be lost. Apparently, a group of states can adopt an agreement on the coordinated interpretation of any document of this kind, but it will be binding only on the parties to this agreement. It is preferable that the necessary changes to the documents under consideration be made by the organizations within which they were developed.
Transformation through a comprehensive interpretative agreement and relevant international treaties is highly problematic. In particular, there is a need to establish a certain hierarchy between an interpretative agreement and the treaties to which this agreement will apply, i.e. in fixing the priority of the provisions of the interpretative agreement in relation to transformable treaties. The difficulty in this case is that irro in an interpretative agreement, in this case, it is necessary to include a complete list of treaties, on the modification of which it is directed.
Meanwhile, as already noted, the terms "document", "original", "signature", "written form" are included in many international treaties, a complete list of which, by the way, does not yet exist. Does this mean that the interpretative agreement applies to all these treaties? There is a point of view according to which documents in electronic form should not be used, in particular, when making real estate transactions, when performing notarial acts, in the field of inheritance law, etc.26 It seems that the conventions governing relations in these areas , the interpretative agreement should not be extended.
Until agreement can be reached on the areas in which EDI is acceptable, it will be difficult to establish which international treaties are subject to an interpretative agreement. The lack of unity on the issue of the limits of admissibility of electronic document management will inevitably lead to a reduction in the number of parties to an interpretative agreement. To date, it is very difficult to develop common approaches to the question of which of the agreements that require transformation can be adjusted in this way. In addition, the broader the list is formulated, the more difficult it is likely to be to ensure that a significant number of states join the interpretative agreement.
w Doc. UN - A/CN.9/548 of 1 April 2004 Report working group on Electronic Commerce on the work of its XXXXIII session, held in New York on March 15-19, 20 (Mr. C. 32.
uniform provisions regarding electronic commerce. The need to implement just such a variant of e-commerce regulation is actively supported by such states as the USA, Great Britain, and France.155 The advantages of this method are obvious: the presence of one document allows for uniform regulation of all the main aspects of e-commerce; the period of time required for the development, adoption and entry into force of the required legal provisions is significantly reduced.
However, this method, according to the author, has obvious drawbacks, which can significantly reduce the effectiveness of this regulation option. First of all, due to the competition of international organizations involved in the regulation of electronic commerce, as well as the existence of various concepts of regulation in this area, it will not be easy to develop an optimal text of the convention that suits most states. It is possible to form a unified approach to the regulation of e-commerce, but this will require certain period time and the presence of a single coordinating center. The first draft of an international convention on electronic commerce was proposed by the United States and prepared on the basis of the 1996 Model Law.156 However, the restrained reaction to this draft from other international organizations and bodies dealing with electronic commerce, their active promotion of their projects indicates the complexity of developing the text of the convention. that suits everyone.
The npocicr of the Convention on Electronic Contracting is currently under consideration by the UNCITRAL Working Group on Electronic Commerce.157 This draft is also based on the texts of the 1996 Model Law and the 2001 Model Law on Electronic Signatures (hereinafter referred to as the 2001 Model Law). 158 introduced amendments to international conventions. Since the mechanisms for such adaptation are quite complex, J. Burdeau suggests not “going deep into one or another of the numerous procedures for revising the relevant conventions, since these procedures are often cumbersome, sometimes with difficult to predict results.”159 Meanwhile, it is hardly possible to abstract from special international legal regulations governing the procedure for changing the texts of international agreements. References to the particular complexity of such procedures, although they may be taken into account, do not negate the need to carry them out.
General provisions concerning the procedure for amending multilateral international treaties are provided for in the Vienna Convention of 1969. In accordance with Art. 40, all contracting states must be notified of any proposal for amendments to the treaty that will be effective between all parties. At the same time, the state has the right to take part in determining the fate of such proposals and in negotiations for the conclusion of any agreement to amend the treaty. However, an amending agreement does not bind a State unless it has acceded to it. However, in Art. 41 provides for the possibility of concluding (subject to certain conditions) an agreement on changing a multilateral treaty in relations only between its individual participants.
In addition, the 1969 Vienna Convention regulates the procedure for novation, i.e. conclusion of a new treaty on the same issue between the same parties. When novating, it is essential whether the participants in the previous agreement participate in the subsequent agreement. If all parties to the previous treaty are also parties to the subsequent treaty, it shall prevail. If the composition of the parties to the previous and subsequent treaties does not match, relations between the two states are governed by the treaty in which both participate.
In addition to the norms of general international law, the procedure for amending and revising a treaty may be governed by provisions enshrined in it itself. However, most international agreements do not contain detailed regulations on this issue or do not deal with it at all.160 More often, international conventions provide special requirements only for certain elements of the procedure for amending or renegotiating a treaty. Thus, for example, in a number of conventions, the initiative to convene a conference to revise them may come from any of the participating States, and in others only from a group of states.161
Secondly, international economic relations, regulated by international conventions that need to be amended, are extremely diverse and complex for legal regulation. Therefore, the development of one convention, apparently, may not be enough to adapt the legal regulation of the entire complex of international commercial relations to the specifics of electronic commerce.
For example, the serious specificity of relations in the field of passenger and freight transportation allows us to conclude that their effective regulation requires, in addition to the general rules on the admissibility of electronic document management and electronic transactions, detailed changes in each of the transport conventions that establish clear rules on the dematerialization of transport documents. . Perhaps, it will be necessary to adopt new international acts in this area. A similar conclusion can be drawn about such an institution as the consideration of disputes by arbitration. It should be taken into account that attempts to specifically regulate e-commerce in certain areas of economic activity are already being undertaken by some international organizations.35
Thirdly, it is not easy to resolve the issue of the content of this document. It seems that several options are possible here. First of all, it is possible to prepare and sign a convention that will set out the principles for regulating electronic circulation and regulate the main institutions of electronic commerce (electronic document management, electronic signature, the procedure for conducting electronic transactions, etc.) without reference to agreements in force in the field of international trade. The developers of the UNCITRAL Model Law on Electronic Commerce, who propose to use this Model Law as the basis for the convention, as well as EU experts, are inclined towards this option of regulation.
However, this option is hardly feasible in practice, since the transformation of existing international agreements, firstly, cannot be implied, and, secondly, it requires a clear definition of what specific changes are being made to the existing regulation procedure and how they will be applied.
We also allow such a mechanism for adapting international treaties to the specifics of e-commerce, in which changes are made to each of the acts in which the concepts of “document”, “written form”, and “signature” are applied. If, in relation to acts of a recommendatory nature developed by international organizations, the problem of transformation does not create complications, then this cannot be said about the revision or
55 Significant* work in this direction has been done, in particular, by WIPO, IATL and a number of other international organizations. For an analysis of this activity, see UNECE Report: doc. UN - TRADE/CEFACT/I999/I9, as well as in doc. UN - ECF/rRADE/190; TRADE/WP.4 /INF. UN/ECE/CEFACT Recommendation 12/Rcv.l of the CMSRA on Facilitation of Procedures for Maritime Transport Documents”.
The situation may be particularly difficult with international conventions that have been adopted by States but have not yet entered into force.39 Such cases are not regulated in current international law, although the long time between the adoption of a convention and its entry into force will increasingly create the problem of adjusting an outdated contracts.
Theoretically, it is possible to imagine a situation where the states that participated in the development of a convention that has not yet entered into force decide to amend the previously developed text. However, in practice, in this case, a significant number of difficulties will arise, firstly, in relation to the circle of participants in the new negotiations, and secondly, in relation to states that have already expressed in one way or another their final consent to be bound by the old text of the treaty and refuse from participating in new negotiations.
Thus, firstly, the procedures for amending or amending different treaties may vary significantly, and secondly, due to the absence or brevity of special regulations, it will be mainly the rules of general international law on this issue that will be involved.
The need to amend the texts of more than thirty international treaties in parallel will require the solution of a number of complex legal and technical problems. First of all, the transformation of these treaties must be at least somehow coordinated in time. The situation when some contracts will already be adapted to electronic document management, while others - ist, will lead in some cases to the impossibility of their joint use. However, coordinating the timing of the revision of such significant amount international conventions is extremely difficult.
One should be prepared for the fact that a number of States parties to the relevant agreements will not respond to proposals for changes. This is due to the fact that not all states are equally interested in the immediate solution of the problems of electronic commerce: industrialized countries show interest in the settlement of electronic commerce, while at the same time for many developing states this problem has not yet become relevant.40
It will be very difficult to achieve agreement on the nature of the changes being made, because today there are significantly different approaches to the regulation of electronic document management. According to the United States, the regulation of e-commerce should be as liberal as possible, focused on
" Mi of the above conventions have not yet entered into force the UN Convention on International Multimodal Transport of Goods 1980, the UN Convention on the Liability of Operators of Transport Terminals in International Trade 1991, the Convention on Civil Liability for Damage Caused during the Transportation of Dangerous Goods by Road, Rail and by inland waterway transport 1989. UN Convention on International Exchangeable Bills and International Promissory Notes 19SS ° Doc.
The regulation of electronic commerce is also possible by adopting two or more conventions prepared by a single coordinating center.162 With this option of regulation, the issues of regulating electronic document management, digital signatures and the procedure for making electronic transactions are included in independent documents. This decision has a serious rationale: electronic document management and electronic digital signature (EDS) are legal institutions that go far beyond private law, so their regulation should be carried out taking into account their possible application in the field of public law relations.
This approach is used in the EU, as well as in some national jurisdictions, which provide for the adoption of several basic laws in the field of e-commerce. The Russian legislator is also inclined to this option: after the adoption federal law“On Digital Signature”163 it is planned to consider several more laws affecting e-commerce issues.
In the current situation, the least vulnerable would be such a mechanism for regulating electronic commerce, in which the development of a single convention aimed at resolving common problems would be followed by the preparation of additional protocols related to individual areas of use of electronic communications. The text of the convention should set out the principles of regulation of electronic commerce and the rules for regulating general institutions (electronic signature, the procedure for making electronic transactions). It is possible to include in the text of the convention and provisions regarding the establishment of applicable law in electronic transactions. It is most reasonable that the text of the convention be based, with some modifications, on the draft Convention on the Use of Electronic Communications in International Contracts, the latest version of which was presented in 2004 at the XXXXIV session of the UNCITRAL Working Group on Electronic Commerce.164
Additional protocols should disclose the features of regulation of electronic document management in certain areas of social activity (trade, transportation, settlements, Advertising activity, customs relations, intellectual property, etc.). These acts may also set forth some other fundamental issues on which it is not easy to achieve a unified position of states. Thus, a separate protocol may be devoted to the issues of determining the jurisdiction of states in the field of electronic commerce.
initiative of private organizations and envisage” a small degree of regulation of e-commerce. At the same time, the position of the European states implies a greater degree of state control over the document flow in electronic networks, in particular, through state certification of intermediary organizations in the field of electronic commerce.
It should be added to this that in the event that changes are made separately to each international treaty, there is a high probability that they will either be inconsistent with each other or will contradict each other. Therefore, with such a mechanism for the transformation of international agreements, it is hardly possible to do without special coordination of the work being carried out. Since many of the conventions under consideration were originally developed within the framework of international organizations, it is reasonable to assume that their transformation will be initiated and implemented by the same organizations. However, obviously, in this case, it will be necessary for one of them to act as a center coordinating the activities of all other interested organizations.
It seems that UNCITRAL could become such a forum in accordance with the mandate given to it by the UN, according to which this organization, in order to progressively unify the law of international trade, is authorized, in particular, to coordinate and encourage cooperation between international organizations and states, to prepare or facilitate the preparation and adoption relevant international instruments.165
When considering at the meeting of UNCITRAL the issue "Legal obstacles to the development of electronic commerce in international documents relating to international trade: means of their elimination", attention was drawn to the need to ensure coordination of the work of various interested international organizations. In this regard, it was noted that a significant number of projects are currently under development or implementation, and UNCITRAL should play its coordinating role “in order to avoid duplication and ensure harmonization in the preparation of various projects of this kind”.42
Thus, the simultaneous introduction of changes in all existing international conventions in order to bring them into line with the requirements of electronic commerce seems to be a very difficult task. Its solution will require at least a long period of time, and, most likely, will not allow for the complete unification of legal regulation in this area. However, such an adjustment is necessary for the successful unification of legal regulation in this area.
Protocols can also be devoted to the issues of standardization of electronic economic activity. At the same time, states, recognizing the text of the convention as binding for themselves, could accede only to those additional protocols that would be acceptable to them.
This structure has long been successfully used in international practice. Thus, the text of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 was subsequently expanded and refined through the development of a series of additional protocols.46 At the same time, the states parties to the European Convention can choose which protocols they consider necessary to accede to. The structure of the Convention on Human Rights and Biomedical Sciences of 199647 is similar.47 This convention (Article 31) provides for the preparation and adoption of protocols that develop the principles contained in the convention in specific areas (transplantation of organs and tissues, cloning, etc.). The protocols are open for signing by the states-participants of the specified convention, however, the states cannot accede to the protocols if they have not ratified the text of the convention itself.
The choice of this option for regulating e-commerce allows us to successfully solve another very important task: to create at the international and national levels a set of uniform rules that would regulate harmoniously and comprehensively new area social relations, and not only unified the current law. States, having agreed to the general rules regarding electronic commerce, have the opportunity not to join the protocols that they consider unacceptable to themselves. And the international community as a whole is given the opportunity to avoid “over-urgulation” and leave enough room for private initiative, which is sorely needed in e-commerce.48
The development of e-commerce requires special international legal regulation, which no one doubts today. However, the choice of a legal regulation option should be approached with extreme caution: if an erroneous line is chosen, the existing barriers to the spread of electronic commerce will not be removed and a significant number of new various legal and technical problems will arise. At the same time, the choice of a well-thought-out regulation option will create an effective legal framework and turn on the “green light” for the application of new technologies in international trade.
In fact, the Internet does not belong to public relations. Technically, the Internet is a collection of computers connected by a network used to store and transmit information. However legal relations may occur while using the Internet.
A feature of such legal relations is that they are mostly extraterritorial in nature. Unilateral application by the state of legal norms governing similar relations, without taking into account the experience of international practice and the legislation of other countries, will be ineffective. This is evidenced by the repeated unsuccessful attempts of countries such as the US and the UK to extend their system and legislation to conflict resolution relations on the Web, to introduce regulation of the expansion of information on the Internet.
It is well known that excessive legal regulation hinders the development of social relations. In the traditional, so-called off-line business, activities in the commercial sector are not regulated and are developing faster. But at the same time, it must be taken into account that in commercial business such development is possible due to its long history of development.
A wealth of experience has been accumulated, established business practices, and it is also important that the parties deal with real people, and not with virtual, impersonal entities. Unlike the traditional one, on-line business has just begun to take shape. Due to a certain specificity, traditional methods for solving problem situations are no longer suitable.
For the normal functioning and development of e-commerce, it is necessary to introduce normative definition a mechanism for carrying out transactions using the Internet and legalizing the corresponding methods of mutual settlements. For this you had to do:
1) recognition of legal force for transactions that are carried out in electronic form;
2) determining the procedure for making electronic payments;
3) creation of regulatory conditions for electronic document management: there is confirmation of the authenticity and authorship of an electronic document through the use of digital signature tools;
4) determination of the legal regime for posting information on the Internet;
5) solving information security issues, establishing the procedure for using cryptoprotection tools.
Thus, it became obvious that the legal regulation of these issues will contribute to the rapid development of electronic commerce. So, on January 30, 1997, the UN General Assembly adopted the Model Law "On Electronic Commerce" developed by the UN Commission on International Trade Law.
This law was supplemented by Article 5 b, adopted by the Commission at its thirty-first session in 1998, invoking paragraph 2 of General Assembly resolution 51/162 of 16 December 1996, in which the Assembly recommended that all States, when enacting or revising their laws, give due consideration to provisions of the Model Law, in view of the need to unify legislation, may be applicable to alternative paper methods of transmission and storage of information.
This was the first step in the development of international law in the field of e-commerce regulation. This document is advisory in nature and is intended primarily for use by states as a basis for the development of national legislation. This international document laid the legal foundations for activities in the field of electronic commerce, gave definitions to basic concepts such as an electronic document, electronic document management, an electronic signature, an author of an electronic document, an information system. He recognized the legal force of documents in electronic form, defined the conditions for an electronic signature as a means of confirming the authenticity and integrity of an electronic document in the preparation and adoption of the Model Law on Electronic Commerce.
The United Nations Commission on International Trade Law (UNCITRAL) considered that the Model Law would serve as an effective tool for States that are updating their legislation, provided that background information and explanations are provided to the executive governments and parliaments on how to provide them with assistance in use of the Model Law. The Commission also took into account the likelihood that the Model Law would be applied in a number of States in which the communication methods provided for in this law were not well known. It is intended to assist users of electronic data transmission and those involved in scientific work in this field. One of the main aims of the Law was to bring to the attention of national legislators internationally recognized norms that could set out how to remove certain legal obstacles and create a sound legal basis for so-called "electronic commerce". The principles enshrined in the Model Law are useful to individual users involved in electronic commerce in developing certain contractual solutions that can be used to overcome legal obstacles that create obstacles to the expansion of the use of electronic commerce.
The Model Law at the international level can in some cases be useful as a tool for interpreting international conventions and other international instruments that create legal barriers to the use of electronic commerce by, for example, requiring the mandatory written execution of certain instruments and contractual agreements. provisions.
Equally important to the development of global Internet commerce was the UNCITRAL Model Law on Electronic Signatures, which was adopted in 2001. The purpose of this Law was to strengthen legal certainty regarding the use of electronic signatures. A presumption is established that electronic signatures, if they meet certain criteria of technical reliability, are considered equivalent to a handwritten signature.
Together with the norm-setting activities of the UN, the European Union also takes an active part in the formation of international law in the field of electronic commerce. In 1998, the Proposal of the Directive of the European Parliament and of the Council of the European Union "On certain aspects of electronic commerce on domestic market". The main objective of this document is to ensure the conditions for the proper functioning of international electronic commerce between the Member States of the European Union. This Directive defines the legal regulation of a significant range of public relations in the field of electronic commerce.
This document contains a set of rules that govern certain aspects of e-commerce in more detail. The mechanism for concluding electronic contracts is quite fundamentally regulated, the requirements that they must comply with, and the established rules for determining the moment of concluding a contract are defined.
Second important document, which forms the European law of electronic commerce, is the EU Directive adopted in December 1999 "On the legal basis of the Communities for the use of electronic signatures". This document fully regulated relations in the field of the use of electronic signatures. Establishes the requirements that electronic digital signature means must comply with, determines the principles for their use, regulates the activities of certification centers, and determines the procedure for providing certification services.
National legislation is also actively developing. A number of countries have adopted various laws governing e-commerce activities. In Ukraine, the beginning of the legal regulation of activities in the field of high technologies was laid in 1998 by the adoption of the Law "On the National Informatization Program" by the Verkhovna Rada of Ukraine. At the same time, the Concept of the National Informatization Program was approved and the Law of Ukraine "On Approval of the Tasks of the National Informatization Program for 1998-2000" was adopted.
The next step was Decree of the President of Ukraine No. 928 dated July 31, 2000 "On measures to develop the national component of the global information network Internet and ensure wide access to this network in Ukraine."
On May 22, 2003, the Verkhovna Rada of Ukraine adopted the Law of Ukraine "On Electronic Documents and Electronic Document Management", which defines the concept of an electronic document and electronic document management, consolidates global trends in recognizing the legal force of an electronic document, indicates the rights and obligations of subjects of electronic document management, their responsibility, etc.
The Law follows the functionally equivalent approach to understanding an electronic document proposed by the UNCITRAL Model Law on Electronic Commerce. At the same time, the Law of Ukraine "On Electronic Digital Signature" was adopted.
So, in the context of all-consuming globalization, the problems of legal regulation of Internet commerce cannot be solved unilaterally at the state level. This encourages almost all states of the world to improve and unify them legal regulation of the sphere of international electronic commerce.
Along with the benefits of e-commerce, there are potential risks, including tax evasion, fraud, infringement of intellectual property rights, and the like. These risks are real, but in developed countries they manage to be managed in a way that does not destroy e-commerce. In Ukraine, the fight against computer crime, including in the field of e-commerce, is carried out by the formed units of electronic intelligence.
Thus, despite the fact that the Internet is a global information system, e-commerce has not yet received a "world" level. It traditionally continues to remain within the framework of national jurisdiction.
At the same time, a more complex "transnational" composition of the participants in the process is possible, exacerbating the problem of the choice of law. The speedy solution of these problems is necessary for Ukraine, because cooperation with foreign partners is developing more and more actively, and today, in the era of globalization, it is difficult to resolve any issues without modern means of handling documents in electronic form, which is the basis for concluding electronic contracts and developing e-commerce in in general.
Measures to increase the role of e-commerce, which are in the competence of the government, industry specialists and investors, include:
Create adequate reality statistical base e-commerce data;
Promoting the development of small and medium-sized Internet businesses, ensuring participation in e-commerce of this segment of the global economy means creating jobs and improving the well-being of the population;
Create a system for training and advanced training of e-commerce workers. The industrial economy, where productivity is determined by the number of machines, is being replaced by an information-based economy. New technologies require new professionals. Unfortunately, the necessary special education today has a very limited number of people. Professional development is required not only by employees themselves, but also by managers of online stores;
Ensure international cooperation in the field of e-commerce at the level of governments of countries and corporate level. Otherwise, there is a risk that a huge segment of the world's population will be excluded from the distribution of economic benefits from this super-profitable business; the Ukrainian state should promote the development of e-commerce.