Law / 13. International law

 

Màster îf Làw Nurtàó M.N.

 Tàràz Stàte Un³vers³tó, Kàzàkһstàn

 

Legal regulation of electronic commerce in international law

 

At the present stage of development of the world economy, the foundations of a "new" economy are laid, the basic branch of which is information telecommunication technologies thanks to which a new sphere such as "e-commerce" has emerged. Currently, the legal basis for electronic commerce is at the stage of formation, however, the very term of electronic commerce is repeatedly used in official international documents. The research of legal scholars raises the question of the need for the unification of the conceptual apparatus in the field of electronic commerce. However, taking into account the fact that Russian law belongs to the Roman-German legal family, the conceptual apparatus is a key issue of legal regulation. Currently, the existing practice of legal regulation of different countries, as well as the experience of law-making activities of international organizations show that the definitions of the term "electronic commerce" differ from each other quite strongly. In this connection, we shall single out the main approaches to the phenomenon under consideration, which have been formed in modern legal science.

In this article, on the basis of studying various economic and legal studies of foreign scientists, the established practice of legal regulation of different countries, as well as norm-setting activities of international organizations, the concept of "electronic commerce" is being explored. Based on the study of more than 20 definitions of this concept, various approaches to its definition in legal science are given. Key words: e-commerce, e-business, e-commerce, e-commerce, unification. At the present stage of development of the world economy, the foundations of a "new" economy are laid, the basic branch of which is information telecommunication technologies thanks to which a new sphere such as "e-commerce" has emerged. Currently, the legal basis for electronic commerce is at the stage of formation, however, the very term of electronic commerce is repeatedly used in official international documents. The research of legal scholars raises the question of the need for the unification of the conceptual apparatus in the field of electronic commerce. However, taking into account the fact that Russian law belongs to the Roman-German legal family, the conceptual apparatus is a key issue of legal regulation [1].

In this article, an attempt will be made to identify the main approaches to the legal regulation of the concept of "e-commerce" on the basis of consideration of the legislation of different countries, as well as regulatory legal acts of international organizations. At the same time, a variety of computer networks and their participation in commerce do not have a single point of view. There is an opinion that the emergence of the term "electronic commerce" refers to an earlier period, namely, to the 1960s. XX century, when large organizations began to use electronic data interchange technologies in transactions between themselves, and banks - to use electronic money transfer. However, in legal studies, the term "electronic commerce" has only been used since the mid-1990s, and it was during this period that the use of this phenomenon passed from exclusion to norm, which required the development of an appropriate legal framework . Currently, the existing practice of legal regulation of different countries, as well as the experience of law-making activities of international organizations show that the definitions of the term "electronic commerce" differ from each other quite strongly. In this connection, we shall single out the main approaches to the phenomenon under consideration, which have been formed in modern legal science. One of the controversial points is the definition of what should be attributed to e-commerce. The broadest definitions of this term imply that e-commerce can use six basic tools: telephone, fax, television, electronic payment and transfer systems, electronic data interchange (EDI) and computer networks, including the Internet [2].

The normative process of regulating e-commerce has been most widely implemented in international documents due to the work on the unification of the legal regulation of electronic commerce and the development of a single terminology in this field. In this area, the leading role belongs to organizations such as the Organization for Economic Co-operation and Development (OECD), the World Trade Organization (WTO) and the United Nations Commission on International Trade Law (hereinafter referred to as UNCITRAL). However, in connection with the relative independence of the development of definitions by each organization, the definitions of e-commerce differ from each other:

- According to the OECD Electronic Commerce document, e-commerce is "... commercial transactions carried out by both legal entities and individuals based on the processing and transmission of digital data, including text, audio or video information, through an open network (similar to the Internet) Or closed networks (such as America Online or Minitel) that can connect to an open network ";

 - in the World Trade Organization (WTO) E-Commerce Work Program (hereinafter referred to as the WTO) adopted by the WTO General Assembly on September 25, 1998, e-commerce is defined as "... the production, distribution, marketing, sale or supply of goods and services by electronic means of communication";

- The Model Law on Electronic Commerce (1996) (hereinafter referred to as the Model Law), developed by the United Nations Commission on International Trade Law, stipulates that the term should be interpreted broadly, So that it covers issues arising from all trade relations, both contractual and non-contractual. E-commerce, according to the Model Law, should not be confined to the scope of sale or purchase, as it covers a whole range of commercial civil transactions concluded electronically via the Internet or through electronic networks;

 - The European Commission defines electronic commerce as a distance service, usually provided for remuneration electronically and on an individual request to the recipient of services.

Thus, in international law there are quite different directions to the definition of the term "electronic commerce", and there is still no unified definition of this concept either in Russian or in foreign practice. The incompleteness of legal consolidation of the concept of e-commerce has generated ambiguity of interpretations and the variability of reading of certain norms of legislation. Therefore, when developing the definition of the term "electronic commerce" Russian legislators should take into account the following provisions:

- When developing a universal definition of e-commerce, the technological aspect should be taken into account. With the active development of information and computer technologies, there are new ways of transferring and processing data, so the definition of the term "electronic commerce" should not contain a limited list of methods for data transmission, and it will suffice to indicate an approximate list of such methods with the reservation of their addition associated with the development of technology In this field. - One of the main legal principles of e-commerce is that the parties that concluded the transaction can not question the legality and validity of the latter solely on the grounds that it is concluded electronically.  This principle, as a rule, is not fixed in the law, but acts as a custom of business turnover and exclusively within the framework of a special agreement between the parties to the transaction on the use of electronic means.

- When developing the definition of the concept of "e-commerce" it is necessary to take into account its international character, the experience of norm-setting of developed countries, and also the developed normative acts of international organizations [3].

Based on the proposed recommendations, the definition of the concept of "electronic commerce" developed by Russian legislators will be the most comprehensive, informative and up-to-date.

 

L³teràture

1.     Babkin F.V. E-commerce and new organizational forms of companies // Management in Russia and abroad. - 2000. - No. 1

2.     http://ecommercelaw.ru/elektronnaya-kommerciya-kak-pravovayakategoriya.  Html.

3.     E-commerce and taxation report by Ministry of Finance of India. 2001 y.