Apec works to smooth cyberspace trade path

By Brian Fallow

WELLINGTON - The bland officialese of the Apec leaders' communique next Monday is likely to give at least a nod of recognition towards work in the area of e-commerce.

It is the kind of worthy but unglamorous trade-easing toil that is what Apec is about these days, especially as tariff liberalisation issues are pulled into the orbit of the coming World Trade Organisation round.

Apec is not the only international body turning its collective mind to overcoming the technical, legal and regulatory impediments to electronic commerce.

The United Nations, OECD, WTO, World Intellectual Property Organisation and International Chambers of Commerce all have an interest in clearing the path.

But Apec's advantage, compared with the OECD, say, is that it includes developing as well as developed economies, and compared with the United Nations, it is better geared to private-sector involvement.

The rapidly burgeoning e-commerce raises thorny issues in both updating and harmonising legal systems.

A paper by Kensington Swan lawyers Paul Sumpter and Andrew Poole lists some of them:

If a deal is concluded in cyberspace is a contract concluded? If so, where? Whose law should apply? Where is the evidence of a contract or a signature?

Then there are issues of intellectual property, privacy, tax, competition law and consumer protection.

Apec has established a web site (www.apii.or.kr/telwg/e-com/index.html) that contains a brief legal guide on e-commerce matters in each member country.

Apec's electronic commerce steering group, at its meeting in Auckland in late June, recommended that the economies adopt the model law on e-commerce drawn up by the UN Commission on International Trade Law in 1996.

Among other things, the model law aims to remove such obstacles as national laws' requirements for "signatures," "writing" and "originals" by recognising their equivalents in an electronic environment, without being technology-specific.

Legal aspects of the communication of data messages are also covered: the formation of contracts, acknowledgement of receipt, and the time and place of dispatch and arrival.

New Zealand's Law Commission is expected to publish a report next month recommending changes to our laws.

Meanwhile, the United States is expected to push at the Auckland meeting for a renewed commitment by Apec not to impose any new taxes on e-commerce transactions, a view normally summed up in the slogan "duty-free cyberspace."