Vekha A.F.,
master of jurisprudence Begzhan A.M.
Al-Farabi
Kazakh National University
Unification
of Rules Governing Electronic Commercial Activity
Emergence and
development of information and communication technologies have led to the
emergence of such new areas as «electronic commerce» [1, c.25].
The term
"electronic commerce" was originally used in mass media since 1993.
Later this term began to be used in professional literature. The term
"electronic commerce" has been used only since the middle of the 90s
years in legal literature, and the need of legal regulation of electronic
commercial activity arose before the international community in that period
[2].
Electronic
commerce is understood as implementation of economic activity with use of computer
networks, in a broad sense.
Practice of legal
regulation of the different countries, and also experience of law-making
activity of the international organizations show that definitions of the term
"electronic commerce" differ from each other rather strongly, and
also still there is no the unified definition of this term [3].
Therefore, the
adoption of uniform term of
"electronic commerce" for all
states is required for effective legal regulation of electronic
commerce in international relations.
The international
community has to consider the following provisions when developing definition
of the term "electronic commerce": technological aspect (methods of data transmission should not be limited in defining the
term, as information technology actively develop and appear new ways of data transmission); validity of transactions
concluded by electronic means to fix on the legislative level on an equal basis
with a written form of the transaction; also it is necessary to take into
account the international character of electronic commerce, the experience of
developed countries and the various regulations of international organizations
in this field.
Currently, there
are several levels of legal regulation of electronic commercial activity:
international; regional; national.
Unification of
rules governing electronic commerce is carried out both within the regional
organizations, and at the international level.
Such
organizations as institute of unification of the private right - UNIDRUA, the
World Intellectual property organization, the International chamber of
commerce, the Economic Commission for Europe of the UN, the UN Center of
assistance to trade and electronic business are engaged in unification of norms
within the UN in this sphere.
Several conventions
in the field of electronic commercial activity were developed within
the Council of Europe, and also documents and Directives were accepted within
the European Union.
International
Chamber of Commerce adopted Common practices for certified digitally international
commerce in 1997, as well as General principles of advertising and marketing on
the Internet, 1998.
European Economic
Commission of the UN and the UN Center of assistance to trade and electronic
business adopted the following acts: Model Agreement of an exchange at the
international commercial use of an electronic exchange, 1995; Agreement on
electronic commerce, 2000.
The process of
unification of rules continues in the framework of the CIS. In the area of
electronic commercial activity we can distinguish Model Law "On electronic
digital signature", adopted in 2000.
Rule-making
process of regulation of electronic commerce received the greatest realization
in the international documents due to the work on unification of legal
regulation of electronic commerce and development of uniform terminology in
this area. In this sphere the leading role belongs to such organizations as the
Organization for Economic Cooperation and Development, the World Trade
Organization and the United Nations Commission on International Trade Law.
Legal basis for
electronic commerce is formed by the General Agreement on Trade in Services of
1994, which creates necessary conditions for free development of the
cross-border market of communication services.
Special Annex to GATS on telecommunications obliges all members of the WTO to ensure to each provider of telecommunication services free access to
networks and communication services of a public nature and also to promote
application of the international standards of compatibility of communications,
in particular, within ITU and International Organization for Standardization
[4].
In 1996 United Nations Commission
on International Trade Law (UNCITRAL) developed Model Law on Electronic
Commerce in order to assist states
in updating their legislation. This law is a model act by which countries can solve basic problems
associated with the regulation of contracts concluded by means of electronic
data interchange [5].
According to this
Model law, the main legal principle of operation of the mechanism of electronic
commerce on international and domestic markets is the following principle: the
deal shouldn't be called into question only on the ground that it is concluded
with use of global computer networks, that is an electronic way [6, p.48]. This
Law acts as a model and a basis, taking into account world experience.
Despite existence
of numerous regulations, at international level the legal base of an electronic
turn is in a stage of formation and is generally presented by model frame laws
in a bigger measure specifying the directions of development of legal
regulation, than establishing concrete obligatory norms. Use of electronic
equivalents of a written form, the signature and documents isn't provided in
numerous contracts and conventions. It can be concluded that problems of
electronic commerce did not receive legal fixing at the international level. In
addition, there are no unified concepts of "document", "a
written form", "signature" in many international documents, so
that they are understood and interpreted ambiguously [7]. In order that these
concepts are interpreted as the terms allowing applications of their electronic
equivalents, it is necessary to adopt a uniform international document
regulating features of electronic commerce and adapting the existing
international documents for realities of electronic transactions.
International
legal regulation of electronic commerce should be based on the following
principles:
1. Comprehensive
legal regulation, both within a country and internationally. All states should
operate on the uniform basic principles and not to create an isolated legal
regime for electronic commerce [8, p.17]. It is necessary to develop the
uniform norms concerning electronic economic activity for
development and protection of business activity in information space.
2. Taking into
account of technical nature of electronic commerce and technological
capabilities of its implementation.
List of
references:
1. Volokitin
A.V., Manoshkin A.P., Soldatenkov A.V., Savchenko S.A., Petrov Yu.A.
Inforkommunikatsii v delovom mire: ucheb. / Pod obsch. red. L.D.Reymana
— M.: NTTs «FIORD-INFO»,
2001. — S. 272.
2. Vasileva N.M.
Elektronnaya kommertsiya kak pravovaya kategoriya. Elektronnyiy portal
«E-commerce law» - http://ecommercelaw.ru/elektronnaya-kommerciya-kak-pravovaya-kategoriya.html
3. Skiba O. D.
Pravovoe regulirovanie elektronnoy kommertsii v mezhdunarodnom prave // Molodoy
uchenyiy. — 2014. — #11.1. — S. 58-62
4. Rassolov I.M.
Pravo i Internet. Teoreticheskie problemyi. - 2-e izd., pererab. i dop. - M .:
Izdatelstvo NORMA , 2009. – 383 s.
5. Generalnoe
soglashenie po torgovle uslugami.: Marrakesh. – 15 apr. 1994.
6. Solovyanenko
N. Problemyi i napravleniya pravovogo regulirovaniya Internet-treydinga
//Ryinok tsennyih bumag. - 2000. - N 23 (182). - S. 48
7. Mibok –
Elektronnaya kommertsiya: pravovoe regulirovanie i nalogooblozhenie -
http://www.mibok.ru/about/press/index.php?ID=1643
8. Bastrikova S.A. Internet v sisteme vzaimodeystviya gosudarstva i formiruyuschegosya grazhdanskogo obschestva v Rossiyskoy Federatsii.: Avtoref. dis. kand. polit. nauk. M., 2003. – 145 s.