United Nations
Commission on
International Trade Law
(UNCITRAL)
A FRESH LOOK AT ONLINE DISPUTE RESOLUTION (ODR) AND GLOBAL E-COMMERCE:
TOWARD A PRACTICAL AND FAIR REDRESS SYSTEM
FOR THE 21ST CENTURY TRADER (CONSUMER AND MERCHANT)
March 29–30, 2010
United Nations Vienna International Centre, Vienna, Austria
Legal Framework for E-Commerce Transactions:
Examples from the Arab Worlds”
Judge Dr. Ehab Elsonbaty,
Senior Judge, Egypt
Legal Advisor, Amiri Diwan (Royal Court), Qatar
ehabelsonbaty@hotmail.com
drehab@diwan.gov.qa
Topics of presentation
• General issues.
– Egypt.
• Examples from the Arab
region:
– Arab League Model
Law.
– Qatar.
– UAE.
– Dubai.
– Bahrain.
– KSA.
– Oman.
• Conclusions.
Regulate or not to regulate,
is this the question?
• The ability of the legislations
of many states to govern eactivities properly is under
question thanks to the rapid
development of technology
which cause new problems on
a speed regular bases.
• No full & comprehensive
legal framework.
• Lack of awareness.
Arab League Model Law
• Arab Model Law for E- transactions & Ecommerce.
• Inspired by the UNCTIRAL model laws for Ecommerce and E- signature.
• With some modifications and additions.
• In a poor language.
• Covers also e-payments, e-contracts
(including consumer protection), applicable
law and jurisdiction.
• May be used as a guideline, but not as a
comprehensive Model Law.
Egypt 1
• Digital signature law 15/2004 and the
regulator (Information Technology
Development Authority)
• By law No 109/2005.
• Draft of e – commerce legislation.
* Adopting the UNCITRAL model law on
electronic commerce.
* The applicable law on e-commerce
transactions is still governed by the
existing choice of law rules +
International conventions (CISG)
Egypt 2
• A shift was made in the policy, and the decision now
that:
• There is no need for an e-commerce law.
• At least for the current period.
• Nor for an e-payment law.
• The logic is that the current legal framework is capable
of handling all the transactions in e-commerce and epayment.
• And that E-signature law has covered the gaps in
respect of the admissibility and enabling of different etransactions and e-document.
• The priority now is to draft a Cyber Crime Law.
• There is also a draft Data Protection Law.
Egypt 3
• Spreading of e – banking.
• Depends on bank initiative.
• No law covers e-banking, only a license from
the Central Bank.
• Many applications in posts, telecom companies
and e-government.
• There is a need to enable electronic payments
supporting various categories of “merchants”
and service providers such as: utility
companies; healthcare service providers;
campuses of schools and universities;
supermarkets, grocery shops and food stores;
hotels and restaurants; market places, shopping
centers, and department stores; etc.
• An ambitious E-Government Program that aim
at making governmental services available to
the citizens.
Egypt 4
• Current legal framework to govern ecommerce includes different relevant laws
such as:
• Civil Code.
• Commercial Code.
• Company Law.
• Civil and Commercial Procedures Law.
• Party autonomy, article 147 of the civil
code recognizes the principle of party
autonomy.
• The Egyptian arbitration law 27/1994 has
adopted a very open - minded approach,
that provides for mediation and arbitration.
Egypt 5
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•
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Copy rights law 82/2002:
Protection is provided for e-products.
Central Bank Law 88/2003:
Consumer Protection Law No 67/2006:
General rights.
A 4: seller or provider should put on all the
electronic document (contract, letters and
correspondents) information of its identity
specially his professional or commercial
registration and his trade mark.
• No special arrangements or guarantees for ecommerce transactions.
• No cooling off period, 14 days if there is a
damage or a defect.
• Other laws that recognize and enable edocuments/ e-transactions such as Tax Law.
Overview of
Electronic Signature Law 1
• WHAT IS AN ELECTRONIC SIGNATURE AND A
DIGITAL SIGNATURE?
• Articles 14 – 18 explain the legal value of electronic
writing and electronic signature, its weight of proof, its
ability to prove obligations and rights.
• If the criteria are met the electronic writing is
considered as the paper one and has the same weight
of proof.
• The electronic document was also explained.
• The electronic signature will have the same proof
evidence as traditional signature by giving credibility
to the content of the electronic writing it is signed with.
Overview of
Electronic Signature Law 2
• ARTICLE 18:
• The electronic signature, electronic writing, and
electronic documents shall enjoy their
conclusiveness in providing evidence in case
they fulfil the following conditions:
• a) Linkage of the electronic signature exclusively
with the signer;
• b) Control of the signer exclusively on the
electronic medium;
• c) The possibility of uncovering any modification
or replacement in the data of the electronic
document or electronic signature;
• The executive regulations of the present Law
shall determine the technical and technological
regulators necessary therefore.
Qatar 1
• E- commerce friendly framework.
• A full e- government system in place, that
is successfully operated and used.
• The legal instrument behind it is a Decision
of the Council of Minster that approved the
policies and procedures for e-government
through out the project.
• Most of the laws specially Civil and
Commercial Procedures Law, Criminal
Procedures Law, Copyrights Law and Tax
Law;
• Recognize and enables e- documents and
e- transactions.
Qatar 2
• A draft for an E-transactions and Ecommerce Law.
• Similar to most of the gulf and region’s laws.
• In the last phase of drafting and approval.
• Fully in line with the UNCITRAL Model Laws
for E- commerce and E- signature and the
UN Convention on E-commerce.
• Covers:
• E-transactions.
• E-signature.
• Consumer protection.
Qatar 3
Chapter 1:
Definitions that clarifies all the new and
technical terms.
• Chapter 2:
• E- transactions.
• Only for those who opted positively to
involve in e-transactions.
• Government explicit consent is required in
transactions with it.
• Offers and acceptances may be made
electronically.
• Enabling of e-documents and e-signatures.
• Chapter 3:
• E-signature rules.
Qatar 4
• Chapter 4:
• Digital certificates & digital certificates service
providers and authorities.
• Chapter 5:
• Processing and storage of data.
• Chapter 6:
• Consumer protection.
• Information to be provided to customers.
(identity, trade mark, codes of conduct)
• Providing customers with details about the
technical and practical process for his
transaction.
• General and professional data (scientific titles,
scientific details)
Qatar 5
• Special rules for commercial relations,
specially promotions and lotteries.
• Rules for commercial unsolicited emails.
• Cooling off period of 3 days.
• Rules for data collection.
• Chapter 7:
• Regulator's authorities in licensing,
monitoring and issuing of guidelines
and regulations.
• Chapter 8:
• Offences and penalties.
U.A.E 1
• Federal Law no 1/2006 on Etransactions and E-commerce.
• Chapter 1:
• Definitions.
• Chapter 2:
• Objectives.
• Sphere of application.
• Chapter 3:
• Requirements of e-transactions.
• E-correspondents.
U.A.E 2
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Storage of e-documents.
Acceptance of e-transaction.
E- document/ writing equivalence.
Electronic signature.
When may an e-document considered
an Original?
Admissibility of e-evidence.
Chapter 4:
E-transactions.
Establishing and validity of contracts.
Automated e-transactions.
U.A.E 3
• Connection between the author and the edocument.
• Receipt of delivery.
• Time and place of the receipt.
• Chapter 5:
• Protected e-document.
• Protected e-signature.
• Admissibility of e-signatures and digital
certificates.
• Responsibilities of signaturee.
• Chapter 6:
• Digital certificate.
• Digital certificates service providers.
U.A.E 4
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Certificate authority and regulator.
Responsibilities of the service provider.
Chapter 7:
Admissibility of foreign e-signature and digital
certificates.
Chapter 8:
Admissibility of e-signature and e-document in
front of the government.
Chapter 9:
Penalties.
Dubai 1
• Law no 2/2002 on Etransactions and E-commerce
Law.
• Chapter 1:
• Definitions.
• Directions for interpretation of
the law in an e-commerce
friendly way.
• chapter 2:
• Requirements of e-transaction.
• Chapter 3:
• Establishment and validity of
e- contracts.
• Chapter 4:
• Protected e- signatures and edocuments.
Dubai 2
Chapter 5:
• Digital certificates and digital
certificates service providers and
authorities.
• Chapter 6:
• Government usage of e- signature
and e-documents.
• Admissibility of them in front of the
official authorities.
• Chapter 7:
• Penalties.
Bahrain 1
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•
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•
•
Law no 28/2002 on E-transactions.
Articles not chapters.
Definitions.
sphere of application.
Acceptance of e-transaction.
Admissibility of e-transaction in front
of public authorities.
• Evidential weight of e-documents.
• Electronic signatures.
• Original documents.
Bahrain 2
• Requirements of copies.
• One copy of e-document is good to fulfil a
requirement for more than one copy.
• Storage of documents.
• Concluding an e- contract.
• E- representatives/ intermediates in
concluding a contract.
• Relaying on e-documents.
• Receipt of delivery.
• Place and time of an e-documents’ receipt.
Bahrain 3
• Regulations of digital certificates
authorities.
• Responsibilities of digital certificates
authorities.
• Internet service provider
responsibilities.
• Domain names regulations.
• Juridical person responsibilities.
• Criminal rules and penalties.
KSA 1
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•
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System e-transactions 2007.
Definitions.
policies and objectives:
Sphere of applications.
Only for those who opted positively to
involve in e-transaction.
• Government explicit consent is
required in transactions with it.
• Offers and acceptances may be made
electronically.
KSA 2
• Legal effects of e-signatures, e- documents
and e-transactions.
• Evidential issues.
• E-documents achieving.
• Concluding an e- contract.
• Electronic signature.
• Ministry and regulator’s authorities.
• National centre for digital certification.
• Digital certificates service providers’
responsibilities.
• Responsibilities of the owner of a digital
certificate.
• Offences and penalties.
Oman 1
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Law no 69/2008 on E-transactions.
Chapter 1:
Definitions.
Policies and objectives.
Sphere of application.
Chapter 2:
Legal effects of e-documents and
requirements of e-transactions.
• Chapter 3:
• E-transactions and concluding an econtract.
Oman 2
• Chapter 4:
• Protection of e-transaction.
• An obligation to use a range of technologies
to achieve the protection such as encryption,
firewalls, recovery system..etc.
• Electronic signature.
• Chapter 5:
• Competent authority/regulator.
• Chapter 6:
• Digital certificates and digital certificates
service provides.
Oman 3
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•
Chapter 7:
Privacy and data protection.
Chapter 8:
Admissibility of e-signatures and edocuments in front of the government.
• Chapter 9:
• Penalties.
Conclusions 1
• Region’s states were inspired
by UNCITRAL’s Model Laws &
Convention.
• Some with a high percentage of
compliance and some with a bit
less.
• Some was limited to rules of the
model law and some has added
more rules that belong to
relevant issues such as: data
protection, jurisdiction &
regulators.
• At any rate, it is clear that this
part of the world has a
harmonized framework on ecommerce and it is ready to
receive a comprehensive
convention on e-commerce that
goes beyond the current one.
Conclusions 2
• A country’s success in the e- era
depends on its ability to
participate in the global
knowledge-based economy.
• An international phenomenon
such as e-commerce needs more
than similar national frameworks,
it needs the international
umbrella that may accommodate
international e-commerce.
• An Int Convention shall grant
great advantages for businesses
and economies.
• UNCITRAL is urged to do the
important big step towards a
comprehensive convention, given
that fact that the national laws are
quit similar to each others now
and the compliance to a single
international instrument sounds
feasible.
@ Thank you for your attention,
@ Any remarks?
Judge Dr. Ehab Elsonbaty,
ehabelsonbaty@hotmail.com
drehab@diwan.gov.qa