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7 Info. & Comm. Tech. L. 5 (1998)

handle is hein.journals/infctel7 and id is 1 raw text is: Information & Communications Technology Law, Vol. 7, No. 1, 1998 The Proper Law for Electronic Commerce ASSAFA ENDESHAW Nanyang Business School (Bla-18), Nanyang Technological University, Nanyang Avenue, Singapore 639798 ABsTRAcT This article discusses the comparative merits of known alternatives in governing E-commerce. First it deals with the reactive or speculative approach that tries to keep track of changes in technology by modifying the law piecemeal and attempting to fill gaps as soon as they appear. The discussion is restricted to issues relating to E-commerce, namely the making of contracts, the forms of proving and enforcing them. Secondly, it examines the appropriateness of learning from the old law merchant and devising an international treaty for E-commerce. It expresses the dilemma that E-com- merce poses as being to wait for enough customary practice to emerge before working out a treaty or developing a treaty that might be swept away by the speed of changes. The article concludes that while, for the moment at least, none of the alternatives might be more appropriate than the rest to the rapid growth of E-commerce, treaties will inevitably become the dominant forms. The making of a treaty appears to be the only device that can accommodate the unpredictability of scope and speed of development of the technology with the requirement of creating certainty, even if in broad terms, in the means of establishing the rights and liabilities of parties transacting through it. Introduction The governance of the Internet generally or aspects of it such as its use as a medium of commerce resurrects the perennial problem of the relation of law to information technology: should the law follow the technology and react in the slavish manner that it has done up to now and might do so in the foreseeable future or should a different approach be adopted?' One alternative to such a reactive or speculative approach that could help both in catching up with technological advances and in avoiding tinkering with slowly evolving domestic laws is the making of treaties on an international level. At the moment, no treaty exists. However, the United Nations Commission on International Trade Law (UNCITRAL) has proposed in June 1996 a Model Law on Electronic Commerce that might encourage the making of a treaty. Similarly, the EU has proposed a 'Distance Selling Directive'2 for the protection of consumers. The Directive lays down certain minimum requirements on busi- nesses such as the supply of specified information and a seven-day 'cooling-off' period in favour of customers. In the US, a committee was set up in 1996 by the National Conference of Commissioners on Uniform State Law (UCL) to work on a draft framework for electronic records and communications. Another alternative could be letting things take shape in the commercial world and, after a while, taking stock of the relevance of the evolving customary practices (along the lines of the old Lex-Mercatoria) before codifying those 1360-0834/98/010005-09 @ 1998 Carfax Publishing Ltd 5

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