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

Recommendations

Commission an updated roadmap
Strengthen information sharing within ASEAN
Build capacity in key areas
Take steps to further cross-border harmonization in three key areas
Establish a regional online dispute resolution facility
Monitor harmonization of e-commerce laws in ASEAN member countries
Embark on a new multi-year project with UNCTAD to contribute to the ASEAN ICT Masterplan 2015

Recognizing the benefits of harmonizing e-commerce legal frameworks in ASEAN countries to promote economic growth and competitiveness, thus contributing to the development of a prosperous and highly competitive AEC, the Review proposes a set of concrete recommendations which could contribute to achieving those goals. These recommendations are put forward to ASEAN and could serve as a basis for future discussion to identify priority actions at the national and regional levels. Supporting assistance from international organizations can be requested depending on the priorities thus defined.

Commission an updated roadmap

The commissioning of a new guidance document/ plan for ASEAN member States, similar to the one prepared for the joint AusAID/ASEAN study commissioned in 2004,[1]⁹ should be considered. An up-to-date ASEAN roadmap or guidance document could help member countries in the development of their domestic e-commerce laws. Components could include guidance on legislation and policy in relevant areas. The guidance document should reflect work of other international organizations and frameworks, such as APEC and the European Union, for example, on addressing cross-border privacy issues.

The roadmap should help member countries self-assess their progress in establishing harmonized e-commerce laws, and the ASEC to monitor progress over time towards harmonization and to share the results at regular ASEAN meetings, such as TELSOM or dedicated Working Group meetings.

Strengthen information sharing within ASEAN

There are opportunities for improving information sharing and exchanges of best practices between member countries. Within ASEAN, countries are at different stages of e-commerce law development. In order to accelerate progress for the region as a whole, countries at a more advanced level should actively share their experiences with other member countries. Particular attention should be given to e-government applications, e-payments and cloud applications. Making resources available for regular regional workshops related to e-commerce and law reform would be required.

The organization of regular regional workshops was regarded as a priority for member country representatives. This could include the development of a schedule of workshops over the 2013–2015 period, where the workshops are attached to existing meetings (such as TELSOM and working-group meetings). The advantage of this approach is that member countries would be able to allocate appropriate staff to attend the entire series of meetings, building continuity over the three years.

Build capacity in key areas

All ASEAN countries have reported in the surveys conducted for this Review a need for strengthening the capacities in certain legal areas. In line with the ASEAN ICT Masterplan 2015, attention should be given not only to building the capacity of policy and law makers but also to creating public awareness of e-commerce legislation among users (citizens, banks, other sectors, etc.). This is important especially from the perspective of addressing cybersecurity concerns and building trust. Calls for more capacity-building were made by all 10 countries as a way to speed up development or implementation of e-commerce laws.

It may be useful to identify opportunities for bilateral assistance, using the gaps outlined in this Review. For example, where a small number of countries have still not implemented a particular law (e.g., cybercrime legislation or consumer protection legislation), they would benefit from bilateral assistance from countries that have experience in these laws. Relevant gaps can be seen in table 2 in the section on the current status of e-commerce law harmonization in ASEAN.

In addition, ASEAN countries have expressed a need for regional capacity-building in areas such as the enforcement of laws and the treatment of cross border issues. Once the exact nature of the capacity-building needs has been identified, resources would need to be allocated for the organization of appropriate regional training courses or workshops.

Member countries can also request the assistance of international organizations (UNCTAD, UNCITRAL, UNESCAP, Interpol, ITU, OECD, etc.). UNCTAD, through its E-commerce and Law Reform Programme, could extend its assistance to ASEAN countries by building capacity of policy and law makers, including parliamentarians. UNCTAD offers the leading capacity-building programme within the United Nations system in support of the preparation of legal frameworks for e-commerce, covering virtually all legal issues covered in this Review. UNCITRAL also provides resources and assistance, and has extensive experience in helping countries align their laws and practices with international standards.

Take steps to further cross-border harmonization in three key areas

Further work is recommended on harmonization in cross-border jurisdiction issues, reducing conflicts and improving cooperation among ASEAN regulators and public law enforcement agencies. Harmonization of cross-jurisdiction transactions would facilitate smoother cross-border enforcement in a number of areas.

(a) Cybercrime

One key area is the investigation and enforcement of cybercrime across borders. Regional cooperation between cybercrime law enforcement agencies, including the establishment of a common training and resource centre and 24/7 national contact points, should be a priority for ASEAN.

(b) Consumer protection

The harmonization of cross-border consumer complaints could also enable e-commerce to prosper. This would require an agreement between consumer protection regulators in each country, complemented by appropriate investigation and referral tools. Becoming participants in the International Consumer Protection and Enforcement Network could be a first step in improving regional cooperation. To date, only the Philippines and Viet Nam are members.

Consumers could be provided with relevant links through an ASEAN-wide consumer protection portal, and complaints could be analysed to enable the issuance of public warnings; take steps to reduce the harmful impact of scams and similar conduct; as well as identify regional issues and trends, which can then feedback into responsive legal and regulatory measures.

(c) Recognition of electronic signatures

The legal recognition of electronic signatures at a national level does not address the needs of electronic commerce without the capability to grant recognition and validity to electronic signatures originating from other jurisdictions. Table 4 shows the variations in the types of electronic signatures recognized by the law in ASEAN.

While the widespread adoption of electronic signature and related trust services has been limited to date, demand for such technologies and service is likely to grow. As such, another area which could benefit from cross-border harmonization is the mutual recognition of electronic signature transactions. ASEAN has already undertaken some preliminary work on this issue, including a pilot scheme between Thailand and Singapore in 2007.

This task will require a stock-taking exercise of the use of electronic signatures in each country, to identify opportunities for the current use of signatures across borders. This could be followed by the development of an ASEAN mutual recognition agreement, which would detail minimum acceptable standards for electronic signatures and related trust services.

Establish a regional online dispute resolution facility

Consideration should be given to the establishment of a regional online dispute resolution scheme for handling domain-name disputes. There are already several schemes in operation, at a national and regional level, and these could be studied to gain insights into possible approaches to establishing a scheme in ASEAN.

In time, this scheme could broaden its coverage to include other types of online disputes, particularly consumer related, building confidence in online transactions, and relieving pressure on the existing court system.

Monitor harmonization of e-commerce laws in ASEAN member countries

Formal, regular reporting against the 2015 target would help to bring up-to-date information to the attention of all stakeholders, and could help to motivate member countries to meet the targets.

The role of the ASEC in this regard will be instrumental. It should ensure necessary coordination intended to harmonize regional and national legal frameworks in order to create an enabling environment for the successful implementation of e-commerce in the 10 countries. It is proposed that the ASEC develops a web page dedicated to the harmonization of e-commerce laws showcasing the progress of each country.

Focal points in each country will gather the data and send it to the ASEC to facilitate information sharing. The information contained in this Review, including relevant legislation, drafts and conventions in English, can be the starting point of such a repository of resources. This platform will serve to inform stakeholders about the process and monitor the advances of e-commerce laws in ASEAN. By so doing, the ASEC would help define recommendations for the ASEAN member countries to foster the enforcement of domestic e-commerce laws harmonized across the region and, ultimately, to facilitate more cross-border trade.

Embark on a new multi-year project with UNCTAD to contribute to the ASEAN ICT Masterplan 2015

Over the years, ASEAN member States have demonstrated their commitment to creating an enabling legal environment for e-commerce. They have made great advances with regard to the adoption of harmonized e-commerce laws. Various development partners have contributed to this process by providing substantive and/or financial support to some member States in the preparation of e-commerce laws, including awareness-raising actions. At the ASEAN level, internal mechanisms in the form of working groups (such as the Working Group on E-commerce) have been monitoring the progress made. Since 2009, however, such monitoring processes have been lacking. Recognizing the work already done so far, UNCTAD, which has been involved for many years in this work in the region, proposes that ASEAN revive the process.

This Review could be seen as a first concrete deliverable in this context. It takes stock of advances made by all ASEAN member States, identifies main challenges to harmonization, and from there, highlights priority areas where ASEAN countries may wish to focus attention in the coming years to achieve the goals and priorities set at the regional level (including the ICT Masterplan 2015 and future plans), and at the domestic level.

In order to move forward and achieve greater regional harmonization and integration in this area, ASEAN could benefit from designing and implementing a detailed project on the further harmonization of e-commerce laws. The project could help to tie together different activities, proposals and recommendations within ASEAN, in one coordinated package. This could help member States to identify and reduce remaining gaps and overlaps, make the best use of available resources and engage relevant partners and stakeholders.

The project could support efforts by the ASEAN member States to implement key recommendations made in the Review and to overcome key challenges they have identified in terms of skills and training and awareness raising (see annex 2), benefiting from UNCTAD’s support. UNCTAD is engaged in similar regional harmonization work in Latin America, Central America and the East African Community, and is well connected with relevant players in the area of e-commerce law harmonization.

A multi-year project would benefit from a combination of regional and national activities. UNCTAD would serve as a resource to the overall efforts by ASEAN to promote further e-commerce law harmonization. To this end, UNCTAD would build on its strong partnerships with international organizations, United Nations entities and governmental agencies that complement UNCTAD’s own expertise and activities and that are specialized in specific law areas (e.g., data protection, computer crime, cybersecurity, privacy, intellectual property, etc.). Close cooperation and coordination would help to avoid duplication of work in the interest of securing the most effective support to ASEAN. An indicative list of relevant partners is given below. Their involvement would depend on the priorities agreed upon by the ASEAN member States:

Asia–Pacific Economic Cooperation (APEC)
European Commission
International Telecommunication Union (ITU)
International Criminal Police Organization (INTERPOL)
Organization for Economic Cooperation and Development (OECD)
United Nations Commission on International Trade Law (UNCITRAL)
United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP)
United States Agency for International Development (USAID)
World Bank
World Intellectual Property Organization (WIPO)
World Trade Organization (WTO)

In addition, the project would benefit from UNCTAD’s international network of experts, who may, for example, be drawn upon in the context of drafting of e-commerce laws reflecting international best practice. If desired, partner organizations would be invited to be associated with this process when relevant to their field of competence. For instance, UNCTAD and UNCITRAL have a long history of collaboration: UNCTAD uses the UNCITRAL e-commerce texts when preparing e-commerce legislation and UNCITRAL relies on UNCTAD’s technical cooperation programmes in countries and its leading capacity-building programme within the United Nations system in support of the preparation of legal frameworks for e-commerce. The project could include a regional component with focused activities around information sharing. This may involve, as per the recommendations, the following activities:

Support to a process of regular monitoring of progress in the area of e-commerce law harmonization. This could include the establishment of a dedicated website and a tool for the sharing of knowledge and documentation. It may also support the organization of regular meetings of a working group dedicated to the subject matter.
Facilitation of sharing of best practices within ASEAN.
Workshops on specific e-commerce law areas for which advancing harmonization remains a priority (e.g., privacy and cybercrime).
Thematic workshops aimed at discussing emerging issues identified by member States (such as e-government, e-payments, cloud computing, etc.). The workshops would call upon sharing best practices in the region as well as globally.
One-week training programmes tailored for policy and law makers (or study tours) on legal topics of relevance for ASEAN countries at the Geneva-based international organizations. UNCTAD’s partner organizations would be invited as well as international experts to discuss e-commerce law harmonization issues. Such occasions would allow ASEAN member States to be exposed to the experience of other regions (such as the European Union, United States and other OECD countries).

The national component of the project could be tailored to the needs of each of the ASEAN member States requesting assistance. Countries would define their priorities through national consultations, based on which UNCTAD would help in the preparation of a targeted action plan in the countries concerned.

UNCTAD has used a number of proven strategies in similar efforts in other developing regions to build capacity to support e-commerce law harmonization:

Advisory services for the preparation of national e-commerce laws. Such services would be provided based on ASEAN countries’ needs for assistance. They would be delivered through advisory missions and continuous collaboration with the beneficiary country and the ASEAN secretariat. Depending on the needs, country missions could include awareness-raising seminars about the nature and issues related to ICT and e-commerce in ASEAN countries, and assistance to the national working groups in the preparation of cyberlaws.
On-site regional and national training courses or briefings. UNCTAD has developed eight training modules on the legal aspects of e-commerce.[2]⁰ Training activities would be based on UNCTAD training course and material already developed and up to date, including delivery through UNCTAD’s distance learning platform.[2]¹ Policy and lawmakers (including parliamentarians) as well as the judiciary are potential target audiences of the capacity-building efforts of UNCTAD.
Documenting and disseminating proven best practices, including through encouraging intra and interregional support and lessons sharing amongst networks of partners.

If ASEAN decides to invest in a jointASEAN/UNCTAD proposal, UNCTAD would prepare a more detailed multi-year project to be implemented with relevant partners for a set period (e.g., 2014–2016), with possible extension. The project proposal would include a budget estimation for regional activities. Individual countries could be consulted to tailor proposals under the umbrella of the project or alternatively could individually request UNCTAD’s assistance for separate projects.

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

[20] A Khmer version of the training course was developed in 2006.

[21] UNCTAD’s TrainForTrade platform: http://learn.unctad.org/. [2-9]





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