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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
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.
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


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