6. Application of best-practice laws and regulations
ASEAN resolves to establish an economic community as a single market and production base.10 A harmonise legal infrastructure is required to facilitate the establishment and operation of this community. Matsumoto notes:
Many complaints, especially in B2C e-commerce, have resulted from differences of language, laws, regulations, business practices and a lack of communication. The working group obtained the common understanding that most of those complaints can be solved by offering advice and information to consumers. To solve cross-border B2C complaints effectively, complaint-handling organizations which have deep knowledge of the legal systems in each country should form a network with each other.
There are various ways that harmonisation of the e-commerce laws and regulations can be undertaken. Possible measures might include:
• ensuring the application of identified legal and regulatory best practice in all ASEAN Member States.
• providing for the recognition in a member state of any judgement,order or declaration of a legal or administered decision-making body of another member state in relation to an e-commerce matter.
Consideration might be given to attempting new and innovative ways of attaining harmonisation, including using interim measures. One such measure might be to have each member enact an e-commerce harmonisation law. This might provide that an identified best-practice law be deemed the law of the member state (using the identification process mentioned in Part 5, above). The harmonisation law might also provide that the identified law be applied mutatis mutandis as if it were the law of the member state. As an example, taking the case of country A, the effect of the harmonisation law might be that the law of country B regarding unfair terms under consumer contracts, which is identified as best practice, is to be deemed to be the law of country A, even though the unfair terms law was not enacted in country A. This would effectively introduce a highest common denominator approach to harmonisation.
In addition, consideration could be given to enacting provisions extending the jurisdiction of a member’s consumer protection laws. Although this would allow for a greater range of circumstances in which a particular member’s law would apply to a cross-border consumer transaction, this would not necessarily enhance harmonisation.
Recognition of decisions of other member countries
Consideration could be given to extending the operation of recognition of foreign judgements legislation so as to recognise lower court and tribunal decisions of other ASEAN Member States regarding disputes relating to consumer protection laws and regulations.
Model Law on Electronic Commerce
Consideration could be given to becoming a party to the UNCITRAL Model Law on Electronic Commerce 1996 and to give effect to relevant provisions of the Model Law though enacting legislation, if the Member has not already done so.
The Model Law requires ‘functional equivalence’ between the requirements for hardcopy documents and electronic documents. Consequently, it cannot be claimed the following requirements do not comply with the law simply because they were done in electronic form. Namely a legal requirement for: information to be given in writing, a signature, the production of a document, or the retention of a document.