A FRESH LOOK AT ONLINE DISPUTE RESOLUTION (ODR) AND GLOBAL E-COMMERCE: TOWARD A PRACTICAL AND FAIR...

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A FRESH LOOK AT ONLINE DISPUTE RESOLUTION (ODR) AND GLOBAL E-COMMERCE: TOWARD A PRACTICAL AND FAIR REDRESS SYSTEM FOR THE 21ST CENTURY TRADER (CONSUMER AND MERCHANT) March 29–30, 2010 United Nations Vienna International Centre, Vienna, Austria Judge Dr. Ehab Elsonbaty, Senior Judge, Egypt Legal Advisor, Amiri Diwan (Royal Court), Qatar [email protected] [email protected] Legal Framework for E-Commerce Transactions : Examples from the Arab Worlds United Nations Commission on International Trade Law (UNCITRAL)

Transcript of A FRESH LOOK AT ONLINE DISPUTE RESOLUTION (ODR) AND GLOBAL E-COMMERCE: TOWARD A PRACTICAL AND FAIR...

A FRESH LOOK AT ONLINE DISPUTE RESOLUTION (ODR) AND GLOBAL E-COMMERCE:TOWARD A PRACTICAL AND FAIR REDRESS SYSTEM

FOR THE 21ST CENTURY TRADER (CONSUMER AND MERCHANT)March 29–30, 2010

United Nations Vienna International Centre, Vienna, Austria

Judge Dr. Ehab Elsonbaty, Senior Judge, Egypt

Legal Advisor, Amiri Diwan (Royal Court), [email protected]

[email protected]

Legal Framework for E-Commerce Transactions :Examples from the Arab Worlds”

United Nations Commission on

International Trade Law (UNCITRAL)

Topics of presentation• General issues.

– Egypt.• Examples from the Arab

region:– Arab League Model

Law.– Qatar.– UAE.– Dubai.– Bahrain.– KSA.– Oman.

• Conclusions.

Regulate or not to regulate, is this the question?

• The ability of the legislations of many states to govern e- activities properly is under question thanks to the rapid development of technology which cause new problems on a speed regular bases.• No full & comprehensive legal framework.• Lack of awareness.

Arab League Model Law

• Arab Model Law for E- transactions & E- commerce.

• Inspired by the UNCTIRAL model laws for E-commerce and E- signature.

• With some modifications and additions.• In a poor language.• Covers also e-payments, e-contracts

(including consumer protection), applicable law and jurisdiction.

• May be used as a guideline, but not as a comprehensive Model Law.

Egypt 1• Digital signature law 15/2004 and the

regulator (Information Technology Development Authority)

• By law No 109/2005.• Draft of e – commerce legislation.

* Adopting the UNCITRAL model law on electronic commerce.* The applicable law on e-commerce transactions is still governed by the existing choice of law rules + International conventions (CISG)

Egypt 2• A shift was made in the policy, and the decision now

that:• There is no need for an e-commerce law.• At least for the current period.• Nor for an e-payment law.• The logic is that the current legal framework is capable

of handling all the transactions in e-commerce and e-payment.

• And that E-signature law has covered the gaps in respect of the admissibility and enabling of different e-transactions and e-document.

• The priority now is to draft a Cyber Crime Law.• There is also a draft Data Protection Law.

Egypt 3• Spreading of e – banking.• Depends on bank initiative.• No law covers e-banking, only a license from

the Central Bank. • Many applications in posts, telecom companies

and e-government. • There is a need to enable electronic payments

supporting various categories of “merchants” and service providers such as: utility companies; healthcare service providers; campuses of schools and universities; supermarkets, grocery shops and food stores; hotels and restaurants; market places, shopping centers, and department stores; etc.

• An ambitious E-Government Program that aim at making governmental services available to the citizens.

Egypt 4• Current legal framework to govern e-

commerce includes different relevant laws such as:

• Civil Code.• Commercial Code.• Company Law.• Civil and Commercial Procedures Law.• Party autonomy, article 147 of the civil

code recognizes the principle of party autonomy.

• The Egyptian arbitration law 27/1994 has adopted a very open - minded approach, that provides for mediation and arbitration.

Egypt 5• Copy rights law 82/2002:• Protection is provided for e-products.• Central Bank Law 88/2003:• Consumer Protection Law No 67/2006:• General rights.• A 4: seller or provider should put on all the

electronic document (contract, letters and correspondents) information of its identity specially his professional or commercial registration and his trade mark.

• No special arrangements or guarantees for e-commerce transactions.

• No cooling off period, 14 days if there is a damage or a defect.

• Other laws that recognize and enable e-documents/ e-transactions such as Tax Law.

Overview of Electronic Signature Law 1

• WHAT IS AN ELECTRONIC SIGNATURE AND A DIGITAL SIGNATURE?

• Articles 14 – 18 explain the legal value of electronic writing and electronic signature, its weight of proof, its ability to prove obligations and rights.

• If the criteria are met the electronic writing is considered as the paper one and has the same weight of proof.

• The electronic document was also explained.• The electronic signature will have the same proof

evidence as traditional signature by giving credibility to the content of the electronic writing it is signed with.

Overview of Electronic Signature Law 2

• ARTICLE 18:• The electronic signature, electronic writing, and

electronic documents shall enjoy their conclusiveness in providing evidence in case they fulfil the following conditions:

• a) Linkage of the electronic signature exclusively with the signer;

• b) Control of the signer exclusively on the electronic medium;

• c) The possibility of uncovering any modification or replacement in the data of the electronic document or electronic signature;

• The executive regulations of the present Law shall determine the technical and technological regulators necessary therefore.

Qatar 1• E- commerce friendly framework.• A full e- government system in place, that

is successfully operated and used.• The legal instrument behind it is a Decision

of the Council of Minster that approved the policies and procedures for e-government through out the project.

• Most of the laws specially Civil and Commercial Procedures Law, Criminal Procedures Law, Copyrights Law and Tax Law;

• Recognize and enables e- documents and e- transactions.

Qatar 2

• A draft for an E-transactions and E-commerce Law.

• Similar to most of the gulf and region’s laws.• In the last phase of drafting and approval.• Fully in line with the UNCITRAL Model Laws

for E- commerce and E- signature and the UN Convention on E-commerce.

• Covers:• E-transactions.• E-signature.• Consumer protection.

Qatar 3

Chapter 1: Definitions that clarifies all the new and

technical terms.• Chapter 2: • E- transactions.• Only for those who opted positively to

involve in e-transactions.• Government explicit consent is required in

transactions with it.• Offers and acceptances may be made

electronically.• Enabling of e-documents and e-signatures. • Chapter 3:• E-signature rules.

Qatar 4• Chapter 4:• Digital certificates & digital certificates service

providers and authorities.• Chapter 5:• Processing and storage of data.• Chapter 6:• Consumer protection.• Information to be provided to customers.

(identity, trade mark, codes of conduct)• Providing customers with details about the

technical and practical process for his transaction.

• General and professional data (scientific titles, scientific details)

Qatar 5

• Special rules for commercial relations, specially promotions and lotteries.

• Rules for commercial unsolicited e-mails.• Cooling off period of 3 days.• Rules for data collection. • Chapter 7:• Regulator's authorities in licensing,

monitoring and issuing of guidelines and regulations.

• Chapter 8:• Offences and penalties.

U.A.E 1

• Federal Law no 1/2006 on E-transactions and E-commerce.

• Chapter 1:• Definitions.• Chapter 2:• Objectives.• Sphere of application.• Chapter 3:• Requirements of e-transactions.• E-correspondents.

U.A.E 2

• Storage of e-documents.• Acceptance of e-transaction.• E- document/ writing equivalence.• Electronic signature.• When may an e-document considered

an Original?• Admissibility of e-evidence.• Chapter 4:• E-transactions.• Establishing and validity of contracts.• Automated e-transactions.

U.A.E 3

• Connection between the author and the e-document.

• Receipt of delivery.• Time and place of the receipt.• Chapter 5:• Protected e-document.• Protected e-signature.• Admissibility of e-signatures and digital

certificates.• Responsibilities of signaturee.• Chapter 6:• Digital certificate.• Digital certificates service providers.

U.A.E 4

• Certificate authority and regulator.• Responsibilities of the service provider.• Chapter 7:• Admissibility of foreign e-signature and digital

certificates.• Chapter 8:• Admissibility of e-signature and e-document in

front of the government.• Chapter 9:• Penalties.

Dubai 1

• Law no 2/2002 on E-transactions and E-commerce Law.

• Chapter 1: • Definitions.• Directions for interpretation of

the law in an e-commerce friendly way.

• chapter 2:• Requirements of e-transaction.• Chapter 3:• Establishment and validity of

e- contracts.• Chapter 4:• Protected e- signatures and e-

documents.

Dubai 2

Chapter 5:• Digital certificates and digital

certificates service providers and authorities.

• Chapter 6:• Government usage of e- signature

and e-documents.• Admissibility of them in front of the

official authorities.• Chapter 7:• Penalties.

Bahrain 1

• Law no 28/2002 on E-transactions.• Articles not chapters.• Definitions.• sphere of application.• Acceptance of e-transaction.• Admissibility of e-transaction in front

of public authorities.• Evidential weight of e-documents.• Electronic signatures.• Original documents.

Bahrain 2

• Requirements of copies.• One copy of e-document is good to fulfil a

requirement for more than one copy.• Storage of documents.• Concluding an e- contract.• E- representatives/ intermediates in

concluding a contract.• Relaying on e-documents.• Receipt of delivery.• Place and time of an e-documents’ receipt.

Bahrain 3

• Regulations of digital certificates authorities.

• Responsibilities of digital certificates authorities.

• Internet service provider responsibilities.

• Domain names regulations.• Juridical person responsibilities.• Criminal rules and penalties.

KSA 1

• System e-transactions 2007.• Definitions.• policies and objectives:• Sphere of applications.• Only for those who opted positively to

involve in e-transaction.• Government explicit consent is

required in transactions with it.• Offers and acceptances may be made

electronically.

KSA 2

• Legal effects of e-signatures, e- documents and e-transactions.

• Evidential issues.• E-documents achieving.• Concluding an e- contract. • Electronic signature.• Ministry and regulator’s authorities.• National centre for digital certification.• Digital certificates service providers’

responsibilities.• Responsibilities of the owner of a digital

certificate.• Offences and penalties.

Oman 1

• Law no 69/2008 on E-transactions.• Chapter 1:• Definitions.• Policies and objectives.• Sphere of application.• Chapter 2:• Legal effects of e-documents and

requirements of e-transactions.• Chapter 3:• E-transactions and concluding an e-

contract.

Oman 2

• Chapter 4:• Protection of e-transaction.• An obligation to use a range of technologies

to achieve the protection such as encryption, firewalls, recovery system..etc.

• Electronic signature.• Chapter 5:• Competent authority/regulator.• Chapter 6:• Digital certificates and digital certificates

service provides.

Oman 3

• Chapter 7:• Privacy and data protection.• Chapter 8:• Admissibility of e-signatures and e-

documents in front of the government.• Chapter 9:• Penalties.

Conclusions 1• Region’s states were inspired

by UNCITRAL’s Model Laws & Convention.

• Some with a high percentage of compliance and some with a bit less.

• Some was limited to rules of the model law and some has added more rules that belong to relevant issues such as: data protection, jurisdiction & regulators.

• At any rate, it is clear that this part of the world has a harmonized framework on e-commerce and it is ready to receive a comprehensive convention on e-commerce that goes beyond the current one.

Conclusions 2• A country’s success in the e- era

depends on its ability to participate in the global knowledge-based economy.

• An international phenomenon such as e-commerce needs more than similar national frameworks, it needs the international umbrella that may accommodate international e-commerce.

• An Int Convention shall grant great advantages for businesses and economies.

• UNCITRAL is urged to do the important big step towards a comprehensive convention, given that fact that the national laws are quit similar to each others now and the compliance to a single international instrument sounds feasible.

@ Thank you for your attention,@ Any remarks?

Judge Dr. Ehab Elsonbaty, [email protected]

[email protected]