E-commerce Disputes Conclusion The use Of internet as a business medium has contributed to the globalization of consumer, as internet by its nature is not limited by borders, this paper tries to examine the challenges and the difficulties faced by law enforcement ND judiciary of different nations in application of this borderless B to C (Business to Consumer E- commerce). We will also try to look into the conditions and challenges present in the way of efficient law enforcement. L To understand the problems of e-commerce, we should understand what the basic structure of e-commerce is and why is e-commerce important?
Use of new information and communication technology in international trade is spreading across the globe. E-commerce or (electronic commerce) which can be described as an open market for buying, selling , marketing distributing ND servicing of products through online medium of internet with the help of its networks . This medium of business has been rising with the increase in the accessibility of internet. A growing number of transactions in this medium are carried out internationally with the help of internet. At the end of the fourth quarter of 2013, it was said that online sales of goods and services is expected to reach 173. 6 billion euros. In East Asia and the pacific, today six times more people have access to the internet compared to the year 2003. Japan is the most important e-commerce base in Asia and pacific region, with n average annual growth rate of e-commerce turnover of 143 % over the last 5 years followed by Australia and The republic of Korea. With the widespread of new technologies, new challenges are arising. One of them relates to legal implications of e-commerce.
The use of alternatives to traditional paper based methods of communication and contracting poses a legal dilemma as many countries lack a legal foundation there off and that is where law enforcement comes into play. Providing efficient enforcement of law for consumers in a cross – border dispute of E-commerce is critical because of TV reasons. First, it increases confidence of consumers on e – commerce leading to increase in numbers. The huge market of e – commerce in the vast economical motion that the market is capable of is valuable to nation states and also the businesses and the consumers to get the benefit out of it.
It is therefore, intensively promoted in international policies as well as in the regional and national strategies. However, boost the business in the medium. Instead of extensively advertising, the positive aspects of online shopping, we should take visible and solid steps to prove that e-commerce is reliable for the consumers. It can e proved as an instrument that can effectively provide enforcement of consumer protection rules in cross border disputes of e-commerce, proving its worthiness in this regard.
Second, Enforcement is essential as a means of post contractual redress for consumers. Unified laws for protecting consumers when buying online would offer a lot of consumers in their purchase abroad , however , as regards accessing rights in case of a problem , enforceability of such rules across borders is more important for consumers . As a matter of fact, the non- enforceable rules are to those non-existing. Accessing remedies is the most issue for a consumer who faces a problem regarding his purchase. Therefore, simplicity and efficiency is what matters as regards consumer confidence.
Modern Scenario After understanding the importance of e-commerce and reasons for its protections we will move on to the main legal issues faced by the e-commerce market. 1) Electronic contracting Traditionally, contract was offer and acceptance of the offer in an unequivocal manner which used to clarify the intent to create a legal relation exists. The contract, with all its provisions, is mutually agreed upon, usually by either signature or ‘shake of hands In e-commerce, both offer and acceptance can be communicated via electronic means.
Electronic contracting raises many legal questions, including whether an electronic contract is legally binding and to what extent, or whether it can be used as evidence in the event of dispute. 2) Electronic Signature/ Digital signature The United Nations commission on International Trade law (UNCRITICAL) describes the functions of the traditionally handwritten signature as follows: a signature is to identify a person, to provide certainty as to the personal involvement of that person in the act of signing and to associate that person tit the content of a document. Electronic signature’ or ‘e-signature’ refers to any method to ‘sign’ an electronic document. Examples are the name of the sender typed at the end of the document, a secret code, a PEST, an image of a handwritten signature, etc. A ‘digital signature’ is type of that involves the use of Public Key Cryptography or Infrastructure (PKZIP), meaning that messages are encrypted with a specific key and can be only decrypted with a second key. Digital signatures are more secure than electronic signatures.
E-signatures raise several questions, such as e-signatures comply with traditional acquirement of a signature and whether and under what circumstances they should be trusted. 3) Electronic payment and security thereof A key requirement for electronic commerce is the development of secure and efficient electronic payment systems. Electronic payment systems come In many forms including digital checks, debit cards, credit cards and stored value cards (C.V.). With new technologies, it is increasingly common that payment takes place using a transmission medium not under the control of the financial system.
It therefore, is necessary to take steps to ensure the security of the messages sent along such a medium. The usual security tortures for electronic payment system are privacy (protection from eavesdropping), authenticity (identification and message integrity), and non- repudiation (prevention of later denying having performed a transaction). 4) Dispute resolution With the modern communication technologies, commercial relationships know no borders and geographic location of the contracting parties is often dispersed. This raises the question of where and how disputes are resolved, especially when buyer and seller are physically distant.
Three possibilities are available to resolve a dispute “court, arbitration or Alternative Dispute Resolution (ADAIR) (I. . , negotiation or mediation. The two latter are generally preferred because of their greater effectiveness and speed. The issue of dispute resolution is extremely important as the dispute mechanism offered will largely influence the attitudes of merchants and consumers at large, and is therefore a main detriment of the future development of electronic commerce and the international supply chain at large. ) Jurisdiction and applicable law A main characteristic of e-commerce is its independence of geographical boundaries. Whereas this unarguably has many economic advantages, it makes it difficult to determine the jurisdiction. With this respect, e- commerce poses boo difficulties: The first is the choice of the forum. The second is the choice of the law. Once the forum is chosen, the judge has to determine which law should be applied. This is a major issue when a commercial dispute arises between two contracting parties of a cross-border electronic contract.
Has the merchant created the virtual storefront in the buyer’s jurisdiction to make a sale, or has the purchaser virtually traveled to the seller’s jurisdiction to make a purchase? In cross-border disputes, the eventual inability for national jurisdictions to enforce foreign judgments may e an additional complication. 6) Consumer Protection The success of e-commerce depends on the safe and attractive environment provided to consumers.
Consumer’s personal information should be kept private and protected, payments should be secure, the choice of labor and jurisdiction should be clear for the user. Especially in Business to consumer (BBC) e-commerce, it is sometimes difficult for the consumer to establish the reliability of the contract partner or the quality of the product of / set-vice offered. Minimum standards should be adhered to so that the risk Of electronic contracting is reduced. Requirements in this respect include accuracy and accessibility of information merchant contact information , marketing practices ( e. . ,avoiding misleading representations) , disclosure of features , terms and conditions, price, cancellation, refund policies, opportunity to review language, record of the transaction, security, privacy, self-regulatory programmer, dispute resolution and effective enforcement. In order to ensure that these requirements are respected by all parties and that an effective legal framework exists to settle eventual disputes, specific regulations and laws providing safe environment for electronic transactions would be issued. ) Cybercafés The openness of the internet, the lack of identification and the low level of users understanding of security give rise to cybercafés. Cybercafés can be described as criminal acts in which computers are either a tool, a target or place of criminal activity. Examples include software piracy, economic espionage, online trafficking (I. D. Theft, credit and debit cards) or traditional crimes which have turned to use modern I. C. T (Information and communication technologies), such as child pornography or online gambling.
In many countries, criminal law does not address cybercafés. To meet the threat of electronic crimes, countries have to create a positive environment including laws, policies, technical standards, law enforcement and cybercafés reporting. International standards as well as international co- operations are necessary to address the global extent of cybercafés. These issues leads to various kinds of problem for consumers like heavy cost of AD. R. Or court, travel expenses, foul plays by business or other parties for the destroying the cases these parties.
This is very clear that is people try to act for the protection of their rights, which leads them not just into legal rubles but also in financial and personal troubles. Now let us understand what are the disputes and the reasons for these disputes. E-COMMERCE DISPUTES The field of e-commerce provides unprecedented opportunities for businesses to expand their markets and offer services to ever larger groups of e-consumers, which will sometimes lead to ‘E-disputes’. It is a very obvious fact that where off-line transactions cause problems and disputes, the same will happen for online transactions.
The task is to ensure that all parties concerned can safely participate in e-commerce transactions and that e- spites will be resolved adequately and also prevent uncertainty over the electronic legal framework from keeping consumers from purchasing products or services on, and companies from entering, the electronic marketplace, even more compellingly so since the number Of ‘cross-border e- disputes’, in particular, across Europe, the US, and Asia shows signs of increasing-4 The SEC-Net is a network of Entry;nine European Consumer Centers (twenty-seven EX. Member States, Iceland and Norway), collaborating in assisting consumers with information on ‘cross-border shopping’ and with complaint and dispute resolution. In 2009 alone, SEC-Net dealt with over 60,000 consumers, having turned to them for advice on their rights concerning cross-border shopping.
It seems that internet purchases are the main source of consumer’s cross-border complaints. More than half of all complaints (55. 9%) in 2009 concerned online transactions and e-commerce being the prime source, at almost 56% Faced with poor contract-related information, consumers may worry about enforceability. Examples of ‘unfair’ contracts being those whose terms and conditions limit the consumers right to seek redress for defective merchandise, especially so since the average nonuser may not understand the ramifications of having his red Reese limited. 5 An example of unfair contract terms is Shrink-Wrap, meant to protect software owners’ rights.
Shrink-wrap agreements are either printed on the back of, or included inside, a box containing commercial computer software and the contract having been attached to its packaging. The consumer has first to buy the software to even access it, once the package has been torn, the consumer is bound by its terms regardless of whether he was able to read them or not. As a consequence, courts have had to ascertain he intentions of the parties involved and whether proper procedures were followed, to decide on the enforceability of any contract be;en them. In Step Saver Systems Inc. V Wise Technology case, the court ruled the agreement unenforceable because users had not been informed about licensing terms and procedures until after payment. The European Consumer Centers Networks (SEC-Net) have carried out joint projects analyzing consumer complaints and concerns on key issues such as e- commerce. In the year 2009, SEC-Net handled over 60,000 contacts with consumers. Consumers turned to them for advice on their rights for help with robbers concerning cross-border shopping. It seems that internet purchases are the main source of consumer’s cross-border complaints. For example, more than half of all transaction complaints (55. 9%) were complaints regarding online transactions in the year 2009. With regard to the types of transactions, e-commerce was the first source of complaints in 2009 with almost 56%.
Failure to deliveries, at 78%, at the core of some 655 delivery-related complaints, representing 21% of their total, with consumers not receiving the ordered product or service at all, delayed deliveries mounting to 11 % and partial deliveries to 7%, respectively. Most consumer complaints in e-commerce are related to non-performance or defective performance by the seller (European Communities, 2010). As far as a typical online sale of goods is concerned, consumers may be faced with any of the following problems: 1 . The consumer places an order but nothing is delivered; 2. The consumer places an order; the supplier collects payment (normally from the consumer’s credit card) without delivering anything; 3. The wrong goods are delivered; 4.
The ordered goods are delivered but when the consumer exercises his sight of withdrawal, the supplier refuses to provide a refund; 5. The right goods are delivered but found defective in some ways after the ‘cooling off period has elapsed. 7 Moreover, research studies do confirm that website information on consumers’ rights is generally poor on a significant number of sites and that there is widespread flouting of the laws providing for consumers protection. The number of websites that comply with laws on the provision of legally required information and respect consumers’ rights, such as the return of goods in the ‘cooling-off period, against full refund, is robbery less than fifty percent.
Communication Integrity is yet another concern in e-commerce, as is the fear of inadvertently being held to an online contract, having clicked the wrong ‘button’ by mistake. Such anxieties decrease consumer confidence in the electronic marketplace, with consumers also worried about their right to cancel electronic transactions. It is, in the absence of such controls, relatively easy to change an electronic record with a signature attached, or to forge the signature itself. 8 Anyone suing because of deliberate electronic misrepresentation will usually find it risky to allege, and official to prove, seller fraud, any failure being costly-9 E-commerce is fraught with contentious issues and the potential for disputes.
There is a need for cyber consumer protection because business is being conducting in a global sphere. Governments have taken some action to protect e-commerce consumers. SFA states that, ‘the legal protection of consumers is something that is taken for granted in all major industrial countries where mass production and distribution of goods as well as the supply of services have long become facts of life. Such countries have already put in place an array of saws and institutions that work towards the protection of consumers’. 10 Ian Ramsey asks: ‘should consumers rely on the protection offered by the consumer law of the 1 9605 or rather should they wait for a newly- fashioned legal framework before contracting online? ‘ . 1 The Electronic Commerce Act of Malaysia which came into force on 30th August 2006 is to align electronic contract formulation to that of ordinary contracts and giving legal recognition to e-contracts including those involving Cyberspace. The united Nation Commission on International Trade Law(Ancestral) Model Law was taken as a axis for the respective Electronic Commerce Acts in most countries (Jubilant, 2010). The united Nations Commission on International Trade Law, created by the I-JNI General Assembly nil 996 as its main legal body on International Commercial Law, tasked with its harmonize and standardizing, noted an increasing number of international trade transactions being carried out by means Of electronic data interchange and other such means Of communication, I. E. , Electronic Commerce. 2 The Model Law, drafted by UNCRITICAL aims at facilitating e-commerce by recognizing and validating Electronic Contracts. Among the countries to have enacted laws on e- commerce, based on this Model Law are, Australia, with its Electronic Transaction Bill of 1 999, Singapore and its Electronic Transaction Act of 1998, united Kingdom and its Electronic Communication Act of 2000, Malaysia, with the enactment of its Electronic Commerce, Act of 2006, also implementing the UNCLEAR Model Law. 1 3 Developing the capacity of an enforcement scheme, the first measures to be taken should be to increase the consumers’ access to courts, which are the source of enforceable decisions. Most of the consumer disputes that occur in e-commerce are justifiable nature.
In spite of this unfortunately, consumers avoid taking legal actions where the dispute is a domestic one. The main reason for this is that, the consumers generally do not find it worthy to bear the hassle taking the value of goods and services purchased. Some of the attempts brushed off by the maneuvers of businesses. However, those small amount given up by the consumers add up on the top of one-another and add into the pockets of dishonest traders almost as an award for successfully handling consumer complaints. The legal costs also have an important off-putting role in this surrender. Duggan emphasizes the consequences of overly discouraging people form litigation.
He states that it causes the underplays of corrective justice and underplays of deterrence. 14 What is more, he denotes that, high- sometimes fixed-legal cost discriminate systematically in favor of large claims against the small claims, and similarly in the favor of repeat players (such as businesses) against one-shooter (consumer). Therefore, in order to increase the motive to promote access to courts, consumer judgment should be free of legal cost. The governments, instead of passively supporting the unjust benefits of the easiness by overlooking, should actively maintain protection of consumer by providing them easy access to legal remedies against those unfair business practices.
Out of control redress mechanism, which can offer a dispute resolution opportunity free of charge is a useful supplementary institute, however, cannot be accepted as a substitute to the courts. It is not acceptable for the consumer to choose to use one of these methods, just because he has to. Alternative dispute resolution methods should not be seen as mechanism that cover the consumer who are left with no option as then being sheltered y those because they are deprived of using their legal right through the courts. The justice system of a so-called social state should provide the means to enable all the consumers including the low-income ones to benefit from jurisdictional services, which generally are one of the exclusive authorities of a state.
Legal aids may also be employed for facilitating such an all-embracing legal system, however, a system excluding consumer claims for legal fees and expenses would represent a more consistent regime. Secondly, the government policies are Of a great importance in shaping the way enforcement is handled due to their exclusive governmental capacities. Governmental policies are the determinant of the applications with differing priorities. Unsatisfactory governmental commitment, inadequate sources and poor grants weakens the effectiveness of enforcement. Similarly, preferences of governments may cause excessive bureaucracy, which may create obstacles for the consumer to access justice.
The approach of a government to International Corporation is another important factor that affects directly the success of a enforcement scheme. This becomes more critical for cross- border dispute deriving from e-commerce. Whatever regime emerges must, however, have a large measure of consistence, predictability and transparency. 15 A subsequent means of improving enforcement is the harmonistic of laws. Harmonicas laws significantly increase the cross- border enforceability of judgments. There has been made a two- fold classification the legal area. First it deals with harmonistic of substantive laws. Second, we will look at the harmonistic of international laws.
Harmonistic of substantive laws regarding the production of consumers in the cross-border purchases would reduce the gap emanating divergence saws, which would contribute to legal certainty and consumer confidence beside, as regards providing redress proximity in national law would increase the common acceptance of consumer disputes and enhance the cross-border enforceability. Unified substantive laws would increase the willingness of the states to cooperate for enforcing foreign judgments. The processes of legal harmonistic have divergent forms unification of laws by regional or international multilateral treaties is one of the most effective ways of harmonistic.
Adoption of modern laws and international restatements also remote the consistency among the national regulations. International standards (such as technology standards) and soft laws, despite not representing and implementation model, can be said to contribute convergence of national laws. In age of globalization this sort of a collaborative approach is inevitable for the states. When they have to act state cannot act in isolation they have to cooperate in order to define norms, which are internationally acceptable to all. As in the case of many areas of law, e-commerce poses challenges in term of conflict of laws and rules of jurisdiction for consumer contracts concluded online.
The need for harmonistic of private law has always been felt most clearly with regions where trans-boundary social and commercial exchange is particularly intense. 1 6 Through its far-reaching capabilities, the internet has been an astonishingly intense medium to operate cross-border facilities inter alai e- commerce. This turn the whole world into a region, there legal convergence is inevitable. In this globalization trend of the law, The Hogue conference is currently working on a draft convention to cover jurisdiction and foreign judgment civil and commercial matters which is intended for accomplishing relied approval. There the drafters are trying to set the merits Of an international legal system that is competent to tackle the global challenges posed.
However, agreement is difficult to reach, and a political blockage is quiet likely when higher levels of protection for consumer disputes are attempted. In fact, harmonicas regulations are to usually the best laws, but rather the outcome of the minimization endeavourers of minimum agreement point. The initial purpose of harmonistic is to increase legal formability reliability as of judgments at international level for benefit of both the businesses and the consumers. The means of doing so consist of suggesting simple and effective solution that are easily applicable by judges and lawyers and to strike a balance between the interest of claimants and defendants. 7 Last of all to mention, promotion of international institution and organization to enforce consumer judgment is another mechanism for reinforcing capacity. Such a system could be maintained by establishing contact point I every state and providing an intense communication and mutual assistance between them for the purpose of enabling consumer in accessing there rights abroad. Structuring an international enforcement network to collaborate with impotent legal systems, which keep up with the international standards, would extensively contribute to smooth the processes towards maintaining cross border redress for consumer that are buying online. International consumer protection enforcement network (SPICE) is suitable example of this type.
It is a membership organization of national enforcement practitioners that share information about cross-border commercial activities affecting consumers in accessing their rights, but it has a very limited range, compared to reach of e-commerce. Therefore, either the capacity of this organization deeds to be extended to cover-utopian- all the states, or new and comprehensive international forum to ensure that consumers are protected with effective enforcement mechanism that enable them to access their rights should be introduced. The best forum to address this task may possibly be the UN due to its far reaching capability. It is very important to empower a consumer with effective legal remedies. TO be empowered with enforceable legal remedies considerably improves the confidence level of consumers.