Review of e-commerce legislation harmonization in the Association of Southeast Asian Nations (ASEAN) [UNCTAD/DTL/STICT/2013/1]

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Background to the ASEAN e-commerce law harmonization process

ASEAN was created in 1967 to promote regional cooperation among its member countries with the objective (a) to accelerate economic growth, social progress and cultural development and (b) to promote regional peace and stability in the region. It currently has 10 member countries: Brunei Darussalam, Cambodia, Indonesia, the Lao People’s Democratic Republic, Malaysia, Myanmar, Philippines, Singapore, Thailand and Viet Nam.

Recognizing the potential of ICTs, ASEAN member countries endorsed the e-ASEAN initiative in 1999 as a result of the ASEAN Vision 2020 defined two years earlier. The Vision aimed, with regard to economic development, to create a stable, prosperous and highly competitive ASEAN economic region in which there is a free flow of goods, services, investment and a freer flow of capital, equitable economic development and reduced poverty and socioeconomic disparities in year 2020. The purpose of the e-ASEAN initiative was to complement national ICT strategies and to promote economic growth and competitiveness for a better integration of ASEAN countries in the global information economy. The e-ASEAN initiative defined an action plan focusing on physical, legal, logistical, social and economic infrastructure to embrace the development and use of ICT.

In 2000, ASEAN member countries entered into e-ASEAN Framework Agreement to facilitate the establishment of the ASEAN Information Infrastructure and promote the growth of e-commerce in the region. The framework comprised five main elements: information infrastructure, e-society, e-government, common market place for ASEAN ICT goods and services, and the creation of an e-commerce friendly environment.

The e-ASEAN Framework Agreement was to be implemented by a series of measures set out in the Roadmap for Integration of e-ASEAN Sector (the e-ASEAN Roadmap).[7] The two key targets in the Roadmap were:

• Measure 78: Enact domestic legislation to provide legal recognition of electronic transactions (i.e., cyberlaws) based on common reference frameworks.
• Measure 79: Facilitate cross-border electronic transactions and the use of digital signatures.

Hence, the process of e-commerce legislation harmonization started more than 10 years ago. ASEAN has been pioneering in the developing world the preparation and implementation of a harmonized e-commerce legal framework consistent across jurisdictions, providing guidelines to develop common objectives and principles for e-commerce legal infrastructure.

In 2007, the AEC Blueprint laid the foundation for realizing the goal of ASEAN as an integrated economic region by 2015. The AEC comprises four pillars: a single market and production base, a highly competitive economic region, a region of equitable economic development, and a region that is fully integrated with the global economy.

Adopted in 2011, the ASEAN ICT Masterplan 2015 provides clear action plans for the region to position its future economic growth, with ICT as a key enabler for the social and economic integration by 2015. It focuses on six strategic thrusts: economic transformation, people empowerment and engagement, innovation, infrastructure development, human capital development and bridging the digital divide. In support of some of the planned initiatives, the Masterplan envisages the establishment of harmonized e-commerce laws in each member country to create a conducive ICT environment for businesses and to build trust in particular by promoting secure transactions within ASEAN, developing a common framework for information security and promoting cybersecurity.

In support of the objectives set by ASEAN, three international initiatives should be mentioned. The first is a joint AusAID/ASEAN study commissioned in 2004, resulting in a multi-year (2004–2009) project assisting ASEAN to meet targets set in the Roadmap for Integration of the e-ASEAN Sector. The e-commerce legislation harmonization focused on electronic transaction laws, and only limited work on other cyberlaws. The results of the project were positive, with four new electronic transaction laws being implemented during the project timeframe, resulting in 8 out of 10 countries having e-commerce legislation by the end of the project in 2009. However, two countries (Cambodia and the Lao People’s Democratic Republic) had still not passed electronic transaction legislation at the end of the project.

As well as identifying key international best-practice frameworks, the AusAID/ASEAN project provided some additional guidance and recommendations to member countries. This included the following recommendations:

• ASEAN member countries should keep exemptions and exceptions in their laws to a minimum;
• Laws (including draft laws where possible) should be made available online and in English (the formal recognized language of ASEAN).[8]

The second is an UNCTAD project through which assistance was provided to Cambodia and the Lao People’s Democratic Republic since 2003 and 2006, respectively (see box 1). UNCTAD helped build capacity of policy and law makers, draft the e-commerce legislation and raise awareness among stakeholders. In addition, UNCTAD featured the pioneering role of ASEAN in this area as other developing regions and countries were developing their own e-commerce legal frameworks in its flagship report The Information Economy Report 2007–2008.[9]

The third initiative is the current ASEAN–UNCTAD Review of e-commerce legislation harmonization in ASEAN, which builds on earlier achievements in the Association. This Review takes stock of progress in the adoption and implementation of e-commerce laws in ASEAN and identifies remaining challenges to overcome in the implementation and enforcement of e-commerce laws. It also highlights new legal and regulatory issues arising from evolving technologies and applications, such as cloud computing and mobile commerce. Based on this analysis, it also proposes a set of recommendations for consideration by ASEAN member countries to further e-commerce harmonization.

Since 2009, no significant regional work has been undertaken on e-commerce law harmonization. However, various ASEAN committees and working groups have continued to monitor developments in this field, and individual member countries have made significant progress on updating their laws.

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[7] ASEAN secretariat, Roadmap for Integration of e-ASEAN Sector, 29 November 2004, http://www.aseansec.org/16689.htm.

[8] ASEAN Internal Document: AADCP E-Commerce Project – Harmonization of E-Commerce Legal Infrastructure in ASEAN, Implementation Progress Checklist (2007).

[9] http://unctad.org/en/Docs/sdteecb20071_en.pdf.

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