International experience of legal regulation of electronic commerce. Legal regulation of electronic commerce. Benefits of international e-commerce

Nesterov A.K. International e-commerce // Encyclopedia of the Nesterovs

International trade is expanding with the development of scientific and technological progress and new technologies, while the demand for goods and services increases significantly every year, playing an important role not only in the development of world trade, but also in the development of the national economies of individual countries. In this regard, the use of electronic commerce in the framework of foreign trade operations becomes relevant.

Benefits of international e-commerce

- This is a set of transactions carried out using electronic settlement systems and electronic document management for the sale and purchase of goods and services, which subsequently move between different countries.

The structure of e-commerce can be illustrated by the following diagram:

Benefits of international e-commerce:

1. The e-commerce system allows you to place orders and execute within the framework of foreign trade, which significantly saves time, allowing you to use it for better and more complete customer service, regardless of the segment.
2. Quantitatively, the composition of transactions does not change after the introduction of electronic commerce systems, but the procedure is simplified through the use of electronic document management.
3. Customer service is much faster as the processing of each order is accelerated.

The use of electronic commerce in foreign economic activity contributes to the expansion of the geography of business on a global scale, providing the possibility of a global presence, regardless of their geographical location. International trade is the international exchange of goods and services through their export and import.

Currently, there are a fairly large number of electronic payment and settlement systems that operate at the international level and are used in foreign trade, for example, Yandex.Money, PayPal, etc. However, the most common form of electronic payment used in foreign trade is currently time received by banking systems, for example, NSPK, SWIFT, various remote banking systems.

Use of e-commerce in international transactions

The international practice of using systems for the implementation of foreign trade operations indicates the presence of four fundamental aspects:

1. The legal basis of the transaction is the contract.
2. Place and time of conclusion of the contract via the Internet.
3. Response form or electronic contract form.
4. Delivery of the subject of the transaction.

Currently, all countries recognize that the basis of a foreign trade transaction carried out using any form of electronic commerce is a contract for the supply, sale or provision of services. In this aspect, e-commerce becomes a conditional concept, and the system of law transfers the features of the legal regulation of commercial relations to related relations, while electronic commerce is directly included in national jurisdictions, and the rights and obligations of the participants in the transaction are implemented regardless of the use of software and hardware.

The place and time of the conclusion of the contract is important for determining national legislation, the choice of court in resolving the conflict. This aspect of international electronic commerce in transactions is associated with direct designation. Formally, the participants in the transaction use various technical means: e-mail, web pages, etc. The offer is considered accepted from the moment when the corresponding message was sent, but not when it was received. In practice, additional confirmation is applied by all participants in the transaction, it can appear in the form of additional acceptances on the web page or directly indicated in the e-mail. This issue is important in order to avoid misunderstanding between the parties on the nature of the proposals and the legal relationship that follows them.

The form of receiving a response is a consequence of the nature of the conclusion of the contract and is determined by the recognition of this form by the participants in the transaction. The response format is indicated in the text of the agreement; it can act as a direct confirmation of the transaction, in the form of a conscious action, for example, making a payment in accordance with the specified conditions, or using an electronic signature.

The delivery of the subject matter of the transaction implies the physical delivery of goods, the delivery of goods in electronic form, the remote provision of services, etc. The physical delivery of goods entails the need to pay customs duties, while goods delivered electronically are not subject to customs payments. Regardless of the subject of the transaction, payment is made in accordance with the concluded agreement using electronic payment systems.

The product specialization of international electronic commerce includes four groups:

1. finished products;
2. cars and equipment;
3. raw materials;
4. services.

Currently, the Internet is a communication tool for interaction between entrepreneurs around the world, which makes the use of electronic commerce an important aspect of foreign economic activity. The integrated effect of the transformation of trade operations with goods and services into electronic form is manifested at all stages of foreign trade operations. The key factor in the intensification of the use of electronic commerce systems in foreign trade transactions was the possibility of reducing the cost of concluding contracts using the possibilities of Internet communication.

In world practice, the following classification of e-commerce systems has developed:

1. Business - Consumer - B2C
2. Business - Business - B2B
3. Consumer - Consumer - С2С

In 2017, the share of transactions carried out using e-commerce systems accounted for about 35-40% of the total volume of trade transactions. Depending on the level of functioning of electronic commerce systems and the share of their use in trading operations, the following gradation was adopted

Development of e-commerce systems at the international level

Use of e-commerce systems	Level of e-commerce systems
	Africa, Oceania, etc.	Countries of Southeast Asia and South America	Spain, Greece, Italy, Ireland, Canada
	Saudi Arabia, UAE	India, Singapore, Luxembourg, Netherlands, Belgium, Australia	Norway, Sweden, Finland, Denmark, Estonia
	Eastern European countries	France, Germany, England	Russia, China, USA, Japan, South Korea

The use of electronic trading systems in international trade transactions is based on the following aspects:

1. Determination of the transaction price - depending on the cost of transportation, customs fees for buyers from different countries, there will be different prices. Exporters can use the services of customs brokers for such purposes or create a department of foreign trade operations;

2. The use of standard Incoterms trade terms - they distribute between the parties the responsibility for paying the costs of transportation, insurance, duties. With the exception of the duty-paid delivery option, all Incoterms require that all duties and taxes be paid by the buyer upon arrival of the goods;

3. Payment - depending on the e-commerce segment, participants can use various forms of payment. In the B2C segment, the main thing is to accept payments using Mastercard, VISA, UnionPay, JSB, etc. bank cards, including using services for processing such payments. For the B2B segment, the main form of payment remains a bank transfer using electronic payment systems. In the C2C segment, payment using services is practiced;

4. Leveling the risk - with a remote transaction and payment, the seller is exposed to a certain risk. The risk may be associated with potential fraud or with a claim payment. The most difficult aspect of e-commerce is manifested in the requirements of the issuing bank to cancel the payment on behalf of the bank card holder. More than half of these claim payments are related to fraud. The main risk leveling factor is the involvement of intermediaries in the electronic procedure for accepting payments;

5. Information support - exporters and importers are required to provide basic customs information to government agencies and transport companies. The basis of information support is the customs classification, while digital codes are used to determine the applicable tariffs. Electronic sales require information support, including to determine the possibility of applying a preferential regime, free trade agreements, etc.;

6. Regulation of electronic commerce - based on the Convention on the Use of Electronic Communications in International Contracts (UNCITRAL). Initiatives to regulate cross-border e-commerce are summarized in the table below;

7. The use of an electronic signature - acts as a guarantee of the correct identification of the participants in the transaction, confirmation of authenticity and prevention of rejection of messages exchanged by the parties. At the international level, the mechanism operates on the basis of national electronic signature laws. In most countries, relevant laws have already been adopted.

Regulation of international e-commerce

UNCITRAL Convention
Recognition of electronic messages	The UNCITRAL Convention allows electronic communications to meet the requirements of other international conventions without having to revise each of those conventions individually.
Legality of electronic communications	The Convention contains provisions that require signatory countries to recognize the legitimacy of electronic communications used in contracts, as well as provisions that deal with issues commonly raised in electronic agreements, such as the location of the parties, information and format requirements, invitations to make offers. , time and place to send and receive incoming messages
Party autonomy	The Convention strengthens the legal certainty of the concept of party autonomy and confirms it. The autonomy of the parties is an integral element of the conclusion of contracts in electronic form. The convention allows the parties to formulate their electronic agreements in the most productive way.
Terms of the International Chamber of Commerce (ICC)
ICC Electronic Terms (ICC eTerms)	Additional provisions intended for use in international contracts by companies around the world. ICC Electronic Terms are a set of clauses designed to be included by parties in their contractual documents to indicate that they intend to enter into a binding electronic contract.
Electronic UCPs (eUCPs)	The ICC has developed an addendum to the UCP 500 for the electronic submission of documents for letter of credit transactions. Briefly referred to as the eUCP, this appendix consisted of 12 articles and was intended to be used in tandem with the UCP 500 when documents are submitted electronically, either in part or in full.
Other initiatives to regulate international trade agreements in electronic form
	It is a service for corporate clients to make international payments. In essence, it provides an electronic alternative to other international payment mechanisms, providing a secure way to manage purchases/payments at the international level by connecting buyers, sellers and partners to a paperless hosting platform.
	It is a neutral secure platform for processing trade-related documents; its goal is to create the possibility of conducting paperless trade between buyers and sellers with the participation of their logistics services and partner banks. The services of this system increase operational efficiency and reduce the time required to process trade transaction documents.

Development of e-commerce in the world

Given the multidimensional nature of the use of electronic trading systems in foreign economic activity, in different countries the approach to them is ambiguous.

The United States is lobbying for the scenario of waiving the imposition of taxes and customs duties on some items of cross-border transactions carried out using electronic commerce systems. This approach applies to products received through electronic communication channels. At the same time, with respect to physical goods, it is proposed to maintain the current practice.

The EU is dominated by the principle of active state regulation of electronic commerce at the international level, according to which a single document on global communications in the field of electronic commerce and foreign economic activity should be adopted. Recent legal proceedings against large US IT companies indicate that the EU does not intend to participate in the elimination of taxation of products received via electronic communication channels.

Japan is actively developing retail cross-border trade using electronic communication channels. The share of retail transactions and the distribution system accounts for about 80% of all foreign trade activities carried out using e-commerce systems. In the B2B sector, the use of e-commerce systems for cross-border transactions is not developed, and their use is limited to an electronic form of payment using banking customer service channels.

In China, the sphere of e-commerce is one of the priority areas for the development of foreign trade. Ecommerce giants - AliExpress, Tao, XinTao, etc. China actively participates in the work of committees and working groups related to the development of e-commerce at the international level. A feature of the Chinese model for the development of electronic commerce at the international level is the conclusion of bilateral agreements with countries participating in trade relations, or the creation of integrated associations from several countries for which there is a single regime for conducting trade operations using electronic commerce systems. China's ambition to be the world leader in cross-border e-commerce applications is underpinned by the strong growth momentum of Chinese Internet marketplaces, most notably AliExpress. The development and implementation of electronic commerce is considered by him as a means of providing a certain leap in the socio-economic and scientific-technical life of society.

The practice of individual companies is also of interest.

Alibaba Group owns the largest trading platform on the Internet, AliExpress.com, the Alibaba.com portal, Alipay's own electronic payment system, as well as a number of related services. AliExpress is an online store focused on the sale of numerous sellers of their products to overseas buyers. Within the framework of this project, a mechanism for concluding a contract, payment, organizing delivery, as well as a mechanism for minimizing risks has been implemented. Alibaba.com is a B2B project organized as a marketplace for organizations.

Royal Dutch Shell - the British-Dutch oil and gas company - has in its structure a special division of Shell Services International, which provides information support for international trade operations carried out using electronic communications. The corporation has created a virtual network called the Shell Wide Web (SWW), which is used to cover the needs of any form of business practice that involves international trade transactions. The technical basis of the network is based on standard communication protocols, which allows access to it with the appropriate permissions. In fact, the network is a tool for business contacts between several counterparties and the main task is information and technical support for foreign trade operations. The network implements mechanisms for electronic conclusion and confirmation of contracts that comply with the documents regulating this area.

Another large-scale project is the Siemens network. GEN (Global Engineering Network) brings together representatives of companies from European countries and is an electronic space for engineering knowledge. The network itself is positioned as a kind of platform where suppliers of components, component parts and potential consumers contact, who can use these products in their factories and in their products. The functionality of the network implies that suppliers provide technical information about products, and potential customers choose the most suitable components and accessories for them. Customers can then do research and development work and experiment using these products at an early stage in the design of their products. This platform allows for the conclusion of a contract for the cross-border supply of products through electronic communication channels.

General Electric implemented a project that combines elements of a trading platform and an electronic trading system to ensure the functioning of the tendering system. The main feature of this approach is the technological support for the conclusion of a contract in electronic form between companies located in different countries, as well as the mechanism of financial security for the execution of the contract in the form of a guarantor, which is this platform.

Hewlett Packard uses its own corporate as information support for cross-border contracts. This is the simplest way to use electronic communications in foreign trade.

Use of e-commerce by Russian enterprises for international transactions

One of the dynamically developing areas of international electronic commerce is the sphere of foreign trade operations between Russia and China. In 2009, the first project focused on e-commerce between Chinese and Russian companies was launched. The format of the project is a trading platform that allows enterprises of both countries to conclude contracts for the supply of products. The trading platform was organized in the city of Suifenhe and focused on trade and service interaction in the framework of foreign trade operations. The main task was to create an electronic commerce system with related support on the basis of a physical trade checkpoint in Heilongjiang Province.

The main direction of the platform by 2017 was the operation of 8 thousand online stores with Russian goods, focused on the domestic market of China. The physical location of the trading platform is due to the concentration of significant volumes of Russian goods in Suifenhe, where the largest wholesale market for Russian goods is located. As a result, e-commerce in a small Chinese border town has become the basis for the "Internet + Russian goods" model. At the same time, Russian companies supply their products using the Suifenhe commercial trading and service platform, while Chinese counterparties buy Russian goods in bulk, and then sell them at retail on the Chinese domestic market through various e-commerce systems.

Distinctive features of this approach:

• government guarantees,
• a secure system for making electronic payments,
• complete customs clearance via the Internet,
• full calculation of logistics,
• information support from the Department of e-commerce of Suifenhe city and access to government databases.

In 2016, the electronic trading platform DAKAITAOWA (translated from Chinese as "open nesting doll") was launched. DAKAITAOWA.COM is focused on the supply of Russian food products to China. The structure of the e-commerce system for foreign trade operations includes:

• marketing research of the market;
• search and establishment of business contacts in Russia and China;
• export-import clearance;
• certification of Russian food;
• information support of logistics.

The advantage of the platform is that there is no need to build your own trade infrastructure and minimal costs for exporting and promoting products.

The main advantage of the service is the protection of counterparties from fakes. At the same time, there are no geographical restrictions on deliveries to China, since the distribution processes are carried out by First Russian Cross-Boarder Trading (Shanghai) Limited. Key directions of this e-commerce system

• Shanghai,
• Beijing,
• chongqing,
• Jiangsu, Zhejiang, Henan, Xinjiang Uygur Autonomous Region and Shandong provinces.

The platform is integrated with China's electronic customs ports, warehouse and transport logistics programs, Chinese payment systems, and China's settlement system. Integration with electronic platforms JD, TMALL Alibaba Group and Suning is planned.

The operation of the platform is provided by two Russian companies:

1. LLC "Russian Export" (Moscow, Russia) - acts as an exporter, searches for manufacturers and supports them in Russia.
2. First Russian Cross-Boarder Trading (Shanghai) ltd (Shanghai, China) - performs the functions of an importer and interacts with counterparties in China.

In the field of wholesale supplies of petroleum products, there are several in the format of electronic trading systems. The electronic trading platform eOil.ru in this format is operated, in particular, by Gazprom (based on the technological solution of Information Systems LLC) and Gazprombank - ETPGPB.ru, as well as others. The functions of electronic trading systems include the sale of petroleum products at fixed prices on terms agreed with a sales representative or as a result of auctions. Distinctive features of Russian sites in this area from foreign models:

• fully electronic document management is used;
• the conclusion of the contract is verified by an electronic signature;
• the performed operations are documented, reports are generated according to the regulations;
• systems are closely integrated with information systems of companies;
• implemented the principle of auction and availability of bidding;
• the reliability of operations is ensured by the security service and financial guarantees for the fulfillment of obligations;
• the ability to buy petroleum products at any station of destination.

The optimal e-commerce model for international trade transactions

Evaluation of the effectiveness of the use of e-commerce systems in international transactions can be based on various sources of data that make it possible to judge the effectiveness of an e-commerce project. At the same time, depending on the format of the e-commerce system, the sources used will differ in terms of content and data provided. You can use the data source selection schema for analysis when implemented for international transactions.

Data source selection scheme for assessing the effectiveness of an e-commerce system for foreign trade transactions

Taking into account the considered options for organizing an e-commerce system for foreign trade, the most promising implementation seems to be the choice of an e-commerce system in the form of an online store or an e-procurement system, which corresponds to the second type in the data source selection scheme.

Comparative analysis of the types of e-commerce system for international transactions

Type of e-commerce system	Peculiarities	Characteristic
Corporate website of the company	Orders are not made in principle. The main task is information support of transactions, support, service information, etc.	Functions like a regular website, no e-commerce tools other than communication with the seller. All operations are performed outside the site.
Information and commercial portal		Unlike a corporate site, systems for placing orders and tenders can be organized. The function of concluding a contract in electronic form can be implemented and electronic document management can operate.
Specialized B2B service	Orders are made and executed directly online	The functionality depends on the specifics of the products or services being sold, and is focused exclusively on legal entities in foreign jurisdictions
Online store, electronic sales system	Combines the functionality of electronic commerce and electronic document management.	In this scheme, the introduction of an electronic trading system means that orders are made on the site, and then entered into the enterprise management system.
Electronic marketplace	The site is organized by one or more organizations that carry out foreign trade activities.	Orders are placed on the principle of auction trading or there is an intermediary between the two parties to the transaction
Brokerage and agency services	The functionality of the system is determined by the capabilities of third-party services and is implemented in the exchange format.

In accordance with the functionality of the second type of e-commerce systems can be used for the following purposes:

1. Wholesale trade automation - suitable for large companies with a significant number of corporate clients. The implementation of this approach can significantly reduce the time and cost of a trading transaction. The main advantage: simplification of the process of concluding a supply contract in electronic form from familiarization with the products to payment. As a result, the number of transactions and the profitability of sales increase. Additional features:

• self-updating showcase from the database;
• storage of information about customers;
• functionality of individual price lists;
• displaying the actual state of the warehouse;
• control of any financial and trading operations

2. Foreign trade activity in the B2B sector - allows you to automate commercial processes using electronic communication tools. In the corporate sector, a large number of customers are not interested in establishing personal contacts with employees of the selling company, for them the most important thing is an acceptable cost and simplicity of the ordering procedure. B2B customers want to see at a glance the full cost of the order, including shipping. The corporate client prefers to use the e-commerce system in a stable way while constantly placing standard orders. There is always a part of potential customers who make or will make only simple small orders. Such orders can take a significant share in the turnover of the company and be profitable if the cost of processing them is reduced, and the number of such orders becomes much larger. Depending on the industry, the share of such clients ranges from 25 to 50%. Accordingly, the use of electronic trading systems in this case is justified in relation to the following groups of customers:

• new customers with one simple order;
• regular customers with small orders and / or orders with a large number of items;
• large customers with regular large orders with a different number of positions.

3. Retail e-commerce - the effectiveness of this approach, focused on foreign markets, proves the experience of AliExpress. This may include all categories of goods that can be ordered via the Internet and delivered by delivery services.

conclusions

E-commerce systems are being implemented by most enterprises interested in maintaining economic relations between suppliers and consumers and are designed to solve the problems of sales for sellers and logistics for buyers. First of all, the implementation of e-commerce systems in foreign trade is aimed at automating labor-intensive routine processes that take a lot of time for employees: taking orders, agreeing on conditions, and other types of commercial information exchange.

Modern foreign and Russian practice of implementing e-commerce projects in foreign trade activities corresponds to achieving the maximum effect through the integration of e-commerce systems with enterprise planning and supply chain systems. At the same time, the buyer receives a simple and fast ordering mechanism, and the seller receives an additional tool to increase the direct sales network and retain customers. The principal factor in the implementation of e-commerce systems is the creation of a comprehensive alternative to existing sales channels and the optimization of commercial processes.

Within the framework of the study, based on the results obtained, the choice of the optimal approach to the organization and implementation of an electronic commerce system for the implementation of foreign trade operations is substantiated. Nominally, the implementation of this direction is an intermediate form between the classic online stores and the electronic trading platform. The introduction of an e-commerce system correlates with the optimization of business processes and an increase in the efficiency of interaction with consumers. At the same time, the introduction of an e-commerce system aims to create a traditional e-commerce model. Due to this, it is envisaged to increase operational efficiency, eliminate time spent on routine operations in order to use time more efficiently, directing it to work with consumers and development. Formation of an effective sales channel through the introduction of an e-procurement system makes it possible to achieve the optimization of foreign trade activities.

Thus, the study shows that the introduction of an electronic commerce system into the foreign trade activities of enterprises in order to optimize it is cost-effective and expedient, since it corresponds to the current trends in the development of world trade and meets the modern conditions of foreign trade activities in general.

Ilya Kabanov

WTO members continue to seek compromise on the regulation of cross-border e-commerce. New opportunities for this are opening up in mega-regional agreements.

Currently, e-commerce is one of the key engines of economic growth and an increase in international trade. In 2013, the total volume of e-commerce in the B2C (business-to-consumer) segment reached $1.25 trillion, in the B2B (business-to-business) segment - $11.3 trillion, and the retail trade itself via the Internet - 963 billion US dollars. By 2016, the bulk of e-commerce is expected to take place in the Asia-Pacific region (39.7% of total transactions), North America (28.2%) and Western Europe (22.6%).

Regulation of e-commerce under the WTO

The beginning of the regulation of electronic commerce at the multilateral level within the WTO can be considered the 2nd WTO Ministerial Conference (1998, Geneva), at which the members of the organization adopted the Declaration on Worldwide Electronic Commerce and agreed not to apply customs duties to goods purchased using telecommunication systems . According to this Declaration, WTO members were tasked with holding discussions on e-commerce issues within the framework of three WTO bodies: the Council for Trade in Goods, the Council for Trade in Services and the Council for TRIPS. Each of these bodies considers issues of electronic commerce within its competence. Thus, the Council for Trade in Services is examining e-commerce, taking into account the provisions of the GATS, including most favored nation treatment (MFN), national treatment, transparency, domestic regulation, market access obligations in terms of electronic delivery of services (including obligations in the field of telecommunications services and distribution service). The Council for Trade in Goods considers e-commerce issues in terms of market access for goods, customs value, customs duties and rules of origin. The Council for TRIPS deals with the protection of intellectual property and related rights, trademark protection and access to new technologies.

In addition, a key decision was made at the 2nd Ministerial Conference on the non-application of customs duties to the transfer of goods using telecommunication systems.

Since this ministerial meeting, WTO members have made minimal progress in developing common provisions related to the regulation of electronic commerce. The moratorium on the application of customs duties was confirmed at the 4th Ministerial Conference in Doha in 2001 and at the 8th Ministerial Conference in Geneva in 2011. In 2012-2014 e-commerce issues were raised during negotiations to expand the scope of the Information Technology Agreement. In particular, it was proposed to fix a zero customs duty rate for certain types of software (SW), including software for GPS/Glonass.

E-commerce is affected by WTO members' market access and national treatment obligations, as well as GATS regulatory principles in the telecommunications sector. Important is the Annex on telecommunications to the GATS, which gives the right to access and use common telecommunications networks and services, regardless of the obligations assumed by the state under the GATS. At the same time, WTO members undertake obligations in terms of ensuring the confidentiality of transmissions and protecting the technical integrity of networks.

Difficulties in multilateral negotiations regarding e-commerce relate to the following issues: the choice of a basic regulatory agreement, the classification of certain types of telecommunication transmissions, the taxation of e-commerce, the relationship (and possible substitution process) between e-commerce and traditional forms of trade, customs duties, competition and application of national law.

The lack of consensus on the scope of e-commerce under existing WTO agreements is a key issue for the development of new rules in this area. For example, discussions in the Council for Trade in Services have shown that most of the commitments that can apply to e-commerce were made when it was just beginning to develop and are now a significant barrier. As a consequence, this will require their revision or abandonment of the application of the GATS to electronic commerce.

On the other hand, the issue of assessing e-commerce as a mode of supply of services was partly resolved in Antigua and Barbuda v. the United States in relation to the provision of gambling services over the Internet. The dispute resolution body ruled that the provision of services over the Internet constituted a cross-border supply of services (mode 1 under GATS).

WTO Members have not yet reached a common understanding of whether "digital products" (e.g. software, music, films, etc., which can be downloaded from the Internet or sold on physical media) are goods or services, or what kind of agreement WTO they should be regulated.

Another source of controversy is the issue of "technological neutrality" in relation to e-commerce, where a state cannot impose discriminatory measures against one technology for the benefit of another.

Discussions about the classification of digital products are partly related to the WTO moratorium on the collection of customs duties on goods purchased using telecommunications systems. Members of the WTO discussed when a permanent tariff ban should apply and when it is technically possible and should apply. With the US and EU positive about the moratorium itself, the EU wants to make it permanent, provided that the purchase of digital products is considered a service.

As a result, due to the lack of a unified regulation of electronic commerce within the multilateral trading system, the significant complexity of the subject of regulation (in particular, the impossibility of applying only the rules of trade in goods or trade in services), as well as the need to take active measures to protect intellectual property rights, states include sections on e-commerce in Free Trade Area Agreements (FTAs).

Regulation of e-commerce in regional agreements

In FTA agreements, two relatively opposite approaches to the definition of the subject of electronic commerce are clearly visible: American and European.

The US sees e-commerce as a generalization of all digital goods and prefers to use rules similar to GATT for such “downloadable” goods. In turn, the EU claims that the content of electronic commerce, as a private and specific case of wholesale and retail trade, refers to services. The European Union explains its position by the fact that the subject of electronic exchange, such as cinema, is not delivered in a physical format and, as a result, such a transaction should be regulated by the GATS.

It should also be noted that, in relation to audiovisual services, a limited number of GATS commitments have been made by EU Member States. The main problem is that if we consider this type of product according to the rules of the GATT, then this will automatically lead to the extension of the principle of national treatment to it. This situation is related to the EU's reluctance to open up its market for films, TV shows, radio or other audiovisual and cultural services to foreign suppliers. The EU promotes the concept of "cultural exclusivity", according to which cultural goods and services should be excluded from the scope of international treaties and agreements. At EU level, this concept is reflected in the Audiovisual Media Services Directive, which contains measures to promote European media content within broadcast and video hosting services.

The presence of such significant contradictions between the European and American approaches to the definition of the subject of electronic commerce has led to the fact that the regulation of electronic commerce in the FTA agreements already concluded by the US and the EU differs significantly.

The American approach is characterized by the inclusion of provisions on the provision of digital goods with MFN and national treatment, as well as rules on regulating issues of electronic authentication and digital signature, personal data protection, which is primarily related to the protection of the interests of American companies in this area. It is worth noting that in order to increase the access of consumers from other countries to e-commerce goods, the United States in the latest FTA agreement concluded with Korea included an article on the principles of access and use of the Internet for e-commerce. Korea, in turn, has achieved the inclusion of an article on consumer protection.

The EU considers e-commerce as a private way of buying, selling and distributing goods, so consumer protection is at the forefront of its interests. In EU FTAs, e-commerce provisions are included in the Trade in Services and Investments chapter, which makes it possible, through lists of obligations, to regulate access to internet services and product marketing. These agreements also contain articles on consumer protection and personal data protection. An example of the difference in approach is the fact that buyers of digital goods in the "iTunes Store" in the EU have the right to return purchases within two weeks without giving reasons. At the same time, for users in the United States, as well as in Russia, such a right is not provided.

As a result, the world community approached negotiations within the framework of mega-regional agreements with two practically opposite approaches. It should be noted that the situation is not as critical as it might seem at first glance. First, these approaches include a number of similar provisions that can act as a bridge, such as articles on transparency and international cooperation, the abolition of customs duties on digital goods, and the application of WTO rules to electronic commerce.

Secondly, due to the fact that the United States is the main driving force in the Trans-Pacific Partnership (TPP), it can be assumed that many issues related to e-commerce will be considered through the prism of the American approach. An additional argument is that the US already has FTAs, including a section on e-commerce, with Peru, Singapore, Korea, Australia, and Chile.

The basis for the E-commerce section of the TPP is the aforementioned US-Korea FTA Agreement. According to the US Trade Representative, this section will include provisions for the prohibition of customs duties on digital goods, as well as electronic authentication and consumer protection. The key issues under debate are the granting of MFN and national treatment to digital goods and ensuring the freedom of information flows. According to unconfirmed reports, the negotiations may also discuss the issues of taxation in relation to e-commerce.

With a high probability, the issue of regimes regarding digital products will be resolved in favor of the United States on the basis of the provisions of the FTA agreements previously concluded by this country.

With regard to the provisions on information flows, the result is still difficult to predict. The main problem is the departure of the United States from the relatively soft obligations that are used in the FTA Agreement with Korea. In particular, they seek to provide guarantees that the parties will not introduce requirements for the localization of the storage of personal data. According to the latest data, in order to find a compromise, information related to the payment of taxes, health care and finances is supposed to be removed from this provision. But even such a decision comes into serious conflict with the existing national legislation of a number of countries in the field of personal data protection.

Third, the outcome of the Transatlantic Trade and Investment Partnership (TTIP) negotiations could lay the groundwork for a common approach to regulating e-commerce. According to the draft agreement, the EU and the US are looking for a compromise position that electronic transmissions are the provision of services, and therefore they are not subject to customs duties and may be subject to national treatment and MFN. This approach satisfies both the US (because it guarantees the absence of customs duties and the chance to promote its “digital goods”) and the EU (because it considers e-commerce as a type of product marketing). At the same time, this is the only compromise reached so far.

Remaining controversies relate to the definition of the subject of regulation (good or service), the application of the MFN and national treatment in relation to digital products and the provision of consumer protection. Overcoming contradictions is possible only within the framework of the TTIP due to the fact that its participants are the US and the EU, which determine modern approaches to the regulation of electronic commerce. Achieving a compromise solution will lead to the formation of a unified approach to the regulation of this issue, which in the future may turn into a separate agreement within the WTO. If a compromise turns out to be unattainable, we can expect the consolidation of the American approach in the Asia-Pacific region. This will make it dominant in this issue, but at the same time without a chance of becoming global due to a contradiction with the position of the EU.

For the EAEU, the combination of European and American approaches is of greatest interest, which will protect Eurasian consumers and promote digital goods produced in the union on world markets. This is due to the fact that the EAEU member states are both consumers of goods purchased through electronic commerce and active participants in the software and other digital content market.

Ilya Kabanov - consultant of the Eurasian Economic Commission

By now, it has become obvious that the successful development of e-commerce on the basis of the current legal regulation is very problematic, and in some cases even impossible. The need to adapt international and national law to the specifics of electronic document management became apparent about twenty years ago. However, even today, the use of electronic means of communication in the course of commercial transactions is expanding much faster than the legal framework is being formed to ensure the use of this technical innovation.

On the one hand, it cannot yet be considered that e-commerce will require large-scale and fundamental changes in the legal regulation of commercial turnover. On the other hand, a number of well-established legal structures and legal norms reflecting them turn out to be inapplicable in the conditions of using electronic means of communication. E-commerce has challenged the traditional understanding of categories such as "document", "writing", "signature" and some others associated with them. However, the need to clarify these concepts is only the top layer of the problem. On a broader plane, the question arises of clarifying the conditions for making transactions in electronic form. Apparently, there was a need to clarify the content of such categories as “subject of the transaction”, “parties of the transaction”, “place of the transaction”.

These problems affect both domestic and international commercial transactions. At the same time, in relation to international commercial turnover, there are many specific issues that need special regulation. The need to determine the law applicable to electronic transactions may require the establishment of special conflict-of-law bindings designed for such cases. In addition, questions about the location of the parties to electronic contracts, jurisdiction (cognizance) and the procedure for resolving disputes in the field and e-commerce need to be resolved.

The lack of adequate legal regulation not only hinders the development of commerce in electronic form, it sometimes hinders the introduction of new mechanisms for the implementation of trade and economic activities. The current situation does not stimulate the expansion of electronic business transactions, does not provide participants with the same protection and awn as in conventional transactions.

Streamlining electronic commerce has been the subject of special consideration by many intergovernmental and non-governmental international

However, such a wide range of bodies and organizations involved in the regulation of e-commerce has not only positive but also negative sides. To date, there is no coordination of work and coordination of positions even on general aspects of the problem, duplication often occurs in the activities of international organizations.7 Concerning certain aspects of e-commerce in relation to the subject of their activities, many international organizations a consistent understanding of e-commerce in general. Meanwhile, such a unified interpretation is necessary, especially with regard to the ways and means that can be used to form an adequate legal framework.

Attempts to unify national legislation in this matter have so far not yielded tangible results. National acts based on the 1996 Model Law have been adopted by a small number of states so far.

In addition, certain norms of such national acts, firstly, sometimes differ significantly from the provisions of the 1996 Model Law,8 and, secondly, may conflict with international agreements that require the use of documents in writing or establish the need for a signature. on the document.

According to the most rough estimates, there are more than 30 such international treaties.9 For the states participating in them, the provisions of these treaties concerning the written form will have priority over the provisions of national legislation. In this sense, the transformation of domestic acts on the basis of the Model Law of 1996 does little to change the situation, because this does not affect the relevant international obligations.

Notably, *nx> the potential for duplication of functions was highlighted in the Report of UNCITRAL on the work of its 36th session (June 30 - July 11, 2003), presented to the UN General Assembly. In a note attached to the report and specifically devoted to this issue, which prepared by the President of the XXI and XXXV sessions of UNCITRAL, Henry M. Joko-Smart (Sierra Leone), in particular, it is stated: “As a representative of a country not represented in the UNECE, I cannot hide my surprise at the fact that a regional body is trying to global harmonization of law If the goal of ECE is to participate more actively in the work of global bodies and to have a beneficial effect on their activities by drawing attention to regional experience and standards, then this may well be useful, while coordination and monitoring will be necessary by the member States of ECE and UNCITRAL I am by no means suggesting that any obstacles be created for the activities of ECE, but only that efforts be made to to prevent dissent in the performance of the UN's functions at the global level. In connection with this constipation, the note even pointed out the need for the UNGA to confirm the mandate of UNCITRAL. 1 A more effective way of unifying national legislation on this issue was taken up in the EU, where in 1999 the said Directive 1999/93/EC on the fundamentals of Community legislation concerning the regulation of electronic signatures was adopted. However, this act introduced a uniform legal regulation for a small group of states. In addition, this act is not entirely consistent with the 1996 Model Law.

9 A detailed analysis of the legal barriers to the development of e-commerce in international instruments relating to international trade, as well as an overview of the comments of international organizations and governments in this regard, are presented in a number of documents prepared by the UNCITRAL Secretariat. (sec: doc. UN - A/CN.9AVG.IVAVP.98. 17 July 2002, Doc. UN - A/CN.9AVG.1V/WP.98. Add.l-Add.4).

documents adopted by international organizations.14 A list of such instruments is given in a special UNECE review on this issue,15 however, it can hardly be considered complete, since it does not mention instruments related to the settlement of disputes and involving the conclusion of arbitration agreements in writing .

J.Burdot's report, as well as the UNECE review, examined international agreements providing for the exchange of paper documents, as well as requiring a written form or signature. At the same time, the possibility of adapting the mentioned international documents to the use of electronic means and the Internet in international commercial circulation was studied.

To date, several ways have been proposed to adapt international legal documents in relation to e-commerce.

The simplest option assumes that e-commerce does not require any special regulation. At the same time, it is proposed to use an expansive (or, in the terminology of J. Burdeau, “constructive”) interpretation of the relevant international treaties. According to J. Burdo, the texts formulated “under the conditions when it was required to fix the obligatory presentation of evidence executed or certified on paper, could, within the framework of a “constructive” interpretation, be considered extendable to documents, written forms or signatures executed in electronic form.”16 In addition, the opinion is expressed that it is hardly permissible to make adjustments to the legal regulation each time in relation to any technical innovation.

Theoretically, the possibility of applying a broad interpretation of an international agreement is based on the provisions of paragraph 3 "b" of Art. 31 of the Vienna Convention on the Law of International Treaties of 1969 (hereinafter referred to as the Vienna Convention of 1969), which provides that when interpreting an international treaty, along with the context, the

(CMR), Convention on General Procedures for Transit between the Member States of the EEC and EFTA 1987. Convention on International Railway Transfers, 1980 (COTIF/CIM), United Nations Convention on Contracts for the International Sale of Goods, 1980. Convention on Simplification 1988 UNIDRULE Convention on International Factoring 1988 UN Convention on International Bills of Exchange and International Promissory Notes 1988 UN Convention on Independent Guarantees and Standby Letters of Credit 1995. Customs Convention on the International Carriage of Goods under TIR Carnet 1975, International Convention on the Harmonization of Frontier Controls of Goods 1982 Convention on Civil Liability for Damage Caused during the Carriage of Dangerous Goods by Road, Rail and Inland Water Transport 1989 European Agreement Concerning the International Carriage of Dangerous Goods by Road, 1957 1 Such documents may include be referred to the act MMK - Rules for electronic bills of lading 1990; FIATA documents - Standard Conditions Concerning Bills of Lading for Mixed Non-Revenues 1992; ICC - Uniform Customs and Practice for Documentary Letters of Credit (as amended in 1993), INCOTERMS (as amended in 2000); UNCITRAL - Model Laws on International Commercial Arbitration 1985, on International Credit Transfers 1992; IMO - International Maritime Dangerous Goods Code (developed on the basis of the International Convention for the Safety of Life and Mors 1974); ICAO - ICAO Standards (I997/S editions); IATA - Standards for the Transport of Dangerous Goods 1997. 15

Doc. UN-ECE/TRADE/CEFACT/1999/CRP.2. Review of definitions of "Writing?", "Signature^ and "Document" employed in multinational conventions and agreements relating to international trade. 16

Doc. UN-A/CN.9/WG.1VAVP.89. 20 DC. 2000. P. 6.

The need to adapt the existing legal regulation to changing social relations is constantly drawn attention in legal science. In particular, L.P. Anufrieva points out that in those areas in which the legal regulation of social activity has been carried out for a long time, “there is a need to develop special provisions designed to be applied to previously unknown aspects of relations.”143

A special study on the need for and ways to adapt international documents to the specifics of electronic commerce, at the request of the UNCITRAL Secretariat, was undertaken by French professor J. Burdeau, who prepared a report entitled "Adaptation to the specifics of electronic commerce of the provisions on evidence contained in international legal instruments that relate to international trade ".144

In terms of its content, J. Burdeau's report turned out to be wider than the stated topic, since transformations in connection with the introduction of electronic circulation require not only documents dedicated to international trade itself, but also acts regulating transport issues (air, sea and multimodal transport), transportation of dangerous goods, customs clearance and international settlements.145 At the same time, both international treaties affecting these issues146 and some other “subsequent practice in the application of a treaty that establishes an agreement between the parties regarding its interpretation” need to be clarified.147

However, it is unlikely that such an agreement of the states-participants of multilateral conventions on the issue of qualification of electronic documents can be achieved in such a simple way. There is currently no unanimity in relation to the evaluation of documents in electronic form. J. Burdeau herself understands this, pointing out that such an interpretation is unlikely to be followed by national judicial authorities.148 secondly, the established practice of interpreting the concepts of "writing" and "signature" by judicial and arbitration bodies.

It is unlikely that a “constructive interpretation” can be in direct conflict with the meaning that was put into certain concepts when developing the relevant treaty. In this regard, we recall how difficult it was to resolve the issue of the form of a transaction, for example, in the UN Convention on Contracts for the International Sale of Goods of 1980 (hereinafter referred to as the Vienna Convention of 1980).149 Since the question of the form of a transaction had for a group of states of fundamental importance, in the course of the negotiations a complex system of obligations was constructed, referring to this issue. It is impossible not to take into account the context in which these provisions were developed. The system of obligations provided for by Art. And, 12 and 96 of the 1980 Sun Convention can be changed not by a constructive interpretation, but only by the relevant international treaty.

In other words, the rejection of the special conventional regulation of e-commerce will undoubtedly create barriers to the development of international trade and economic turnover. The lack of legal certainty regarding the legal validity of documents in electronic form introduces an element of instability into commercial relations and does not provide the level of reliability currently guaranteed by written documents. Therefore, the question does not come down to whether clarifications and additions to the existing conventional regulation are necessary, but to how they can be implemented. This position is supported by many states that are most interested in the international regulation of electronic commerce.150

The problem of adapting international treaties to new circumstances that take place after their entry into force has always existed. Accelerating the pace of social

However, one cannot agree with the statement that in this case we are talking about making minor changes: for example, the dematerialization of goods title or customs documents will entail significant changes in the entire system of regulation of relevant relations.

In addition, J.Burdo does not indicate what the special status of an “interpretative agreement” is in comparison with an ordinary international treaty. In particular, whether the "interpretative agreement" falls under the rules of international law on treaties. This question is, of course, rhetorical, since general international law does not provide for any simplified form when amending and supplementing existing treaties.

The agreement on interpretation proposes to establish new definitions of the concepts "signature", "writing", "document", "original" and some others used in commercial circulation. By expanding the content of these concepts, they could be extended to electronic documents. The advantage of an interpretative agreement, according to J. Burdeau, is that if it were signed, the states would be able to avoid the laborious and lengthy procedure for reviewing a significant number of international treaties, while solving the problem of unifying the regulation of electronic commerce.

According to J. Burdeau, the merit of such a document lies in the fact that it would impose obligations on states not only in relation to international treaties, but also “documents that do not have the quality of conventions, in terms of the definitions contained in them. Thus, it could be a question of clarifying “authentic”,151 i.e., by concluding an international agreement. emanating from the parties themselves, the interpretation of the provisions of various binding instruments, regardless of the legal nature of such instruments (an international treaty, a derivative legal instrument or a recommendation).”24

However, such a scheme for correcting documents of a non-conventional nature is quite controversial. Also doubtful are the assertions that documents of a recommendatory nature are “binding” for states, and their “authentic” interpretation can come from states. Since the majority of such documents are developed by one or another international organization and are not expected to be approved by their states, their correction or authentic interpretation can only come from the relevant organization. It seems that international organizations have certain rights to modify or interpret the non-conventional documents they have adopted.25 Economic and scientific and technological developments make international treaties become obsolete much faster than they used to be. In this regard, proposals are increasingly being made about the possibility and necessity of interpreting treaties in accordance with these changed conditions. UNECE has proposed “the preparation of a comprehensive protocol aimed at changing the legal regimes of multilateral treaties in order to promote the use of e-commerce”.152

The Vienna Convention of 1969 stipulates that when interpreting an international treaty, along with the context, “any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions” (clause 3 “a” of article 31) is taken into account. Therefore, theoretically, there are no obstacles to the development of a protocol that introduces a new interpretation of some terms related to the implementation of electronic commerce.

However, it is quite obvious that in this case legal and technical difficulties will arise. Firstly, because this comprehensive protocol will have to supplement not one, but several international agreements that do not coincide in terms of the subject of regulation and the circle of participants. Secondly, it seems that differences in the subject of regulation will lead to a different amount of changes and additions that will need to be made to the mentioned agreements.

Understanding how difficult it would be to develop such a comprehensive protocol, J. Burdeau proposed introducing a new kind of international treaty - an “interpretative agreement”, emphasizing that such a form should not have too high a status, similar to the existing “acts of revision”. The fact is that in many cases we are not talking about making changes that contradict the texts of already adopted documents, but only about clarifying the meaning of certain terms or giving them a meaning that they could not have had at the time the treaties were drafted. “Using the form of a simple agreement on interpretation, which would be uniform and common for all international documents of any legal significance,” J. Burdo points out, “it would seem that it would be possible to quite easily solve the problem of unification and at the same time not a single question would directly arise about a genuine change in the texts of existing treaties, nor the question of the correctness of the revision procedure.”153 Specialists of the UNECE Center for Facilitation of Procedures and Practices in Management, Trade and Transport (hereinafter referred to as CEFACT) in a specially adopted by them recommendations on this issue dated March 15, 199913

The proposed interpretative agreement also has another fundamental drawback: the circle of states that are parties to an interpretative agreement and countries that are parties to a particular convention that needs to be adjusted will most likely not be able to cope. There will be no problems if the circle of participants in the interpretative agreement is wider than the participants in the relevant convention: in this case, the rules of the interpretative agreement will be binding on all participants in a particular treaty. However, if states that have not acceded to an interpretative agreement participate in the transformed convention, then the problem of different interpretations of the norms of the convention by the participants arises.

The idea of ​​an interpretative agreement was, in fact, already proposed at the prajugic, in the draft Convention on Electronic Contracting prepared by the UNCITRAL Working Group on Electronic Commerce.27 Article Y “Messaging under other international conventions” is included in the final provisions of the draft. According to option "L" of this article, States that accede to the Convention undertake to apply the provisions set out in Chapter III and establishing the legal regime for the use of electronic communications to the exchange of data messages that may be sent to each other by the parties in accordance with other international treaties, prepared with the assistance of UNCITRAL and listed in this article.154 At the same time, however, it does not specify how to deal with international treaties concluded within the framework of other international organizations.

Article Y of the draft Convention on Electronic Contracting suffers from the same shortcomings as noted above in relation to an interpretative agreement and is therefore unlikely to be acceptable to States.29 In addition, it is not clear why the scope of international conventions is limited to just five while the number of conventions regulating various aspects of international commercial activity and not designed for the use of electronic communications in international trade is no less than thirty?10

Another option for adapting international legal regulation to e-commerce involves the development of a special international treaty that establishes

It is difficult to imagine a situation in which, by agreement between a group of states, changes would be made to, say, INCOTERMS, or a special interpretation of the provisions of this document would be established. In this case, the meaning of INCOTERMS as a universal unified regulator would be lost. Apparently, a group of states can adopt an agreement on the coordinated interpretation of any document of this kind, but it will be binding only on the parties to this agreement. It is preferable that the necessary changes to the documents under consideration be made by the organizations within which they were developed.

Transformation through a comprehensive interpretative agreement and relevant international treaties is highly problematic. In particular, there is a need to establish a certain hierarchy between an interpretative agreement and the treaties to which this agreement will apply, i.e. in fixing the priority of the provisions of the interpretative agreement in relation to transformable treaties. The difficulty in this case is that irro in an interpretative agreement, in this case, it is necessary to include a complete list of treaties, on the modification of which it is directed.

Meanwhile, as already noted, the terms "document", "original", "signature", "written form" are included in many international treaties, a complete list of which, by the way, does not yet exist. Does this mean that the interpretative agreement applies to all these treaties? There is a point of view according to which documents in electronic form should not be used, in particular, when making real estate transactions, when performing notarial acts, in the field of inheritance law, etc.26 It seems that the conventions governing relations in these areas , the interpretative agreement should not be extended.

Until agreement can be reached on which areas EDI is acceptable, it will be difficult to establish which international treaties are subject to an interpretative agreement. The lack of unity on the issue of the limits of admissibility of electronic document management will inevitably lead to a reduction in the number of parties to an interpretative agreement. To date, it is very difficult to develop common approaches to the question of which of the agreements that require transformation can be adjusted in this way. In addition, the broader the list is formulated, the more difficult it is likely to be to ensure that a significant number of states join the interpretative agreement.

w Doc. UN - A/CN.9/548 of 1 April 2004 Report of the Working Party on Electronic Commerce on the work of its XXXXIII session, held in New York 15-19 March 20 (Mr. C. 32.

uniform provisions regarding electronic commerce. The need to implement just such a variant of e-commerce regulation is actively supported by such states as the United States, Great Britain, and France.155 The advantages of this method are obvious: the presence of one document allows for unified regulation of all the main aspects of e-commerce; the period of time required for the development, adoption and entry into force of the required legal provisions is significantly reduced.

However, this method, according to the author, has obvious drawbacks, which can significantly reduce the effectiveness of this regulation option. First of all, due to the competition of international organizations involved in the regulation of electronic commerce, as well as the existence of various concepts of regulation in this area, it will not be easy to develop an optimal text of the convention that suits most states. It is possible to form a unified approach to the regulation of e-commerce, but this will require a certain period of time and the presence of a single coordinating center. The first draft of an international convention on electronic commerce was proposed by the United States and prepared on the basis of the 1996 Model Law.156 However, the restrained reaction to this draft from other international organizations and bodies dealing with the problems of electronic commerce, their active promotion of their projects indicates the complexity of developing the text of the convention that suits everyone.

The npocicr of the Convention on Electronic Contracting is currently under consideration by the UNCITRAL Working Group on Electronic Commerce.157 This draft is also based on the texts of the 1996 Model Law and the 2001 Model Law on Electronic Signatures (hereinafter referred to as the 2001 Model Law). 158 introduced amendments to international conventions. Since the mechanisms for such adaptation are quite complex, J. Burdeau suggests not “going deep into one or another of the numerous procedures for revising the relevant conventions, since these procedures are often cumbersome, sometimes with difficult to predict results.”159 Meanwhile, it is hardly possible to abstract from special international legal regulations governing the procedure for changing the texts of international agreements. References to the particular complexity of such procedures, although they may be taken into account, do not negate the need to carry them out.

General provisions concerning the procedure for amending multilateral international treaties are provided for in the Vienna Convention of 1969. In accordance with Art. 40, all contracting states must be notified of any proposal for amendments to the treaty that will be effective between all parties. At the same time, the state has the right to take part in determining the fate of such proposals and in negotiations for the conclusion of any agreement to amend the treaty. However, an amending agreement does not bind a State unless it has acceded to it. However, in Art. 41 provides for the possibility of concluding (subject to certain conditions) an agreement on changing a multilateral treaty in relations only between its individual participants.

In addition, the 1969 Vienna Convention regulates the procedure for novation, i.e. conclusion of a new treaty on the same issue between the same parties. When novating, it is essential whether the participants in the previous agreement participate in the subsequent agreement. If all parties to the previous treaty are also parties to the subsequent treaty, it shall prevail. If the composition of the parties to the previous and subsequent treaties does not match, relations between the two states are governed by the treaty in which both participate.

In addition to the norms of general international law, the procedure for amending and revising a treaty may be governed by provisions enshrined in it itself. However, most international agreements do not contain detailed regulations on this issue or do not deal with it at all.160 More often, international conventions provide special requirements only for certain elements of the procedure for amending or revising a treaty. Thus, for example, in a number of conventions, the initiative to convene a conference to revise them may come from any of the States Parties, while in others, only from a group of States.161

Secondly, international economic relations, regulated by international conventions that need to be amended, are extremely diverse and complex for legal regulation. Therefore, the development of one convention, apparently, may not be enough to adapt the legal regulation of the entire complex of international commercial relations to the specifics of electronic commerce.

For example, the serious specificity of relations in the field of passenger and freight transportation allows us to conclude that their effective regulation requires, in addition to the general rules on the admissibility of electronic document management and electronic transactions, detailed changes in each of the transport conventions that establish clear rules on the dematerialization of transport documents. . Perhaps, it will be necessary to adopt new international acts in this area. A similar conclusion can be drawn about such an institution as the consideration of disputes by arbitration. It should be taken into account that attempts to specifically regulate e-commerce in certain areas of economic activity are already being undertaken by some international organizations.35

Thirdly, it is not easy to resolve the issue of the content of this document. It seems that several options are possible here. First of all, it is possible to prepare and sign a convention that will set out the principles for regulating electronic circulation and regulate the main institutions of electronic commerce (electronic document management, electronic signature, the procedure for conducting electronic transactions, etc.) without reference to agreements in force in the field of international trade. The developers of the UNCITRAL Model Law on Electronic Commerce, who propose to use this Model Law as the basis for the convention, as well as EU specialists, tend to this option of regulation.

However, this option is hardly feasible in practice, since the transformation of existing international agreements, firstly, cannot be implied, and, secondly, it requires a clear definition of what specific changes are being made to the existing regulation procedure and how they will be applied.

We also allow such a mechanism for adapting international treaties to the specifics of e-commerce, in which changes are made to each of the acts in which the concepts of “document”, “written form”, and “signature” are applied. If, in relation to acts of a recommendatory nature developed by international organizations, the problem of transformation does not create complications, then this cannot be said about the revision or

55 Significant* work in this direction has been done, in particular, by WIPO, IATL and a number of other international organizations. For an analysis of this activity, see UNECE Report: doc. UN - TRADE/CEFACT/I999/I9, as well as in doc. UN - ECF/rRADE/190; TRADE/WP.4 /INF. UN/ECE/CEFACT Recommendation 12/Rcv.l of the CMSRA on Facilitation of Procedures for Maritime Transport Documents”.

The situation with international conventions that have been adopted by states but have not yet entered into force may be particularly difficult.39 Such cases are not regulated in current international law, although the long time between the adoption of a convention and its entry into force will increasingly create the problem of adjusting an outdated contracts.

Theoretically, it is possible to imagine a situation where the states that participated in the development of a convention that has not yet entered into force decide to amend the previously developed text. However, in practice, in this case, a significant number of difficulties will arise, firstly, in relation to the circle of participants in the new negotiations, and secondly, in relation to states that have already expressed their final consent in one way or another to be bound by the old text of the treaty and refuse from participating in new negotiations.

Thus, firstly, the procedures for amending or amending different treaties may vary significantly, and secondly, due to the absence or brevity of special regulations, it will be mainly the norms of general international law on this issue that will be involved.

The need to amend the texts of more than thirty international treaties in parallel will require the solution of a number of complex legal and technical problems. First of all, the transformation of these treaties must be at least somehow coordinated in time. The situation when some contracts will already be adapted to electronic document management, while others - ist, will lead in some cases to the impossibility of their joint use. However, coordinating the revision of such a large number of international conventions in time is extremely difficult.

One should be prepared for the fact that a number of States parties to the relevant agreements will not respond to proposals for changes. This is due to the fact that not all states are equally interested in an immediate solution to the problems of electronic commerce: industrialized countries show interest in regulating electronic commerce, while at the same time this problem has not yet become relevant for many developing states.40

It will be very difficult to achieve agreement on the nature of the changes being made, because today there are significantly different approaches to the regulation of electronic document management. According to the United States, the regulation of e-commerce should be as liberal as possible, focused on

" Mi of the above conventions have not yet entered into force. The UN Convention on International Multimodal Transport of Goods 1980, the UN Convention on the Liability of Operators of Transport Terminals in International Trade 1991, the Convention on Civil Liability for Damage Caused during the Transportation of Dangerous Goods by Road, Rail and by inland waterway transport 1989. UN Convention on International Exchangeable Bills and International Promissory Notes 19SS ° Doc.

The regulation of electronic commerce is also possible by adopting two or more conventions prepared by a single coordinating center.162 With this option of regulation, the issues of regulating electronic document management, digital signatures and the procedure for making electronic transactions are included in independent documents. This decision has a serious rationale: electronic document management and electronic digital signature (EDS) are legal institutions that go far beyond private law, so their regulation should be carried out taking into account their possible application in the field of public law relations.

This approach is used in the EU, as well as in some national jurisdictions, which provide for the adoption of several basic laws in the field of e-commerce. The Russian legislator is also leaning towards this option: after the adoption of the Federal Law “On Electronic Digital Signature”163, it is planned to consider several more laws affecting electronic commerce.

In the current situation, the least vulnerable would be such a mechanism for regulating electronic commerce, in which the development of a single convention aimed at resolving common problems would be followed by the preparation of additional protocols related to individual areas of use of electronic communications. The text of the convention should set out the principles of regulation of electronic commerce and the rules for regulating general institutions (electronic signature, the procedure for making electronic transactions). It is possible to include in the text of the convention and provisions regarding the establishment of applicable law in electronic transactions. It is most reasonable that the text of the convention be based, with some modifications, on the draft Convention on the Use of Electronic Communications in International Contracts, the latest version of which was presented in 2004 at the XXXXIV session of the UNCITRAL Working Group on Electronic Commerce.164

Additional protocols should disclose the specifics of regulating electronic document management in certain areas of social activity (trade, transportation, settlements, advertising, customs relations, intellectual property, etc.). In these acts, some other fundamental issues on which it is not easy to achieve a unified position of states can be set out. Thus, a separate protocol may be devoted to the issues of determining the jurisdiction of states in the field of electronic commerce.

initiative of private organizations and envisage” a small degree of regulation of e-commerce. At the same time, the position of the European states implies a greater degree of state control over the document flow in electronic networks, in particular, through state certification of intermediary organizations in the field of electronic commerce.

It should be added to this that in the event that changes are made separately to each international treaty, there is a high probability that they will either be inconsistent with each other or will contradict each other. Therefore, with such a mechanism for the transformation of international agreements, it is hardly possible to do without special coordination of the work being carried out. Since many of the conventions under consideration were originally developed within the framework of international organizations, it is reasonable to assume that their transformation will be initiated and implemented by the same organizations. However, obviously, in this case, it will be necessary for one of them to act as a center coordinating the activities of all other interested organizations.

It seems that UNCITRAL could become such a forum in accordance with the mandate given to it by the UN, according to which this organization, in order to progressively unify the law of international trade, is authorized, in particular, to coordinate and encourage cooperation between international organizations and states, to prepare or facilitate the preparation and adoption relevant international instruments.165

During the consideration at the UNCITRAL meeting of the issue "Legal obstacles to the development of electronic commerce in international documents related to international trade: means of their elimination", attention was drawn to the need to ensure coordination of the work of various interested international organizations. In this regard, it was noted that a significant number of projects were currently under development or implementation, and UNCITRAL should fulfill its coordinating function "in order to avoid duplication and ensure harmonization in the preparation of various projects of this kind".42

Thus, the simultaneous introduction of changes in all existing international conventions in order to bring them into line with the requirements of electronic commerce seems to be a very difficult task. Its solution will require at least a long period of time, and, most likely, will not allow for the complete unification of legal regulation in this area. However, such an adjustment is necessary for the successful unification of legal regulation in this area.

Protocols can also be devoted to the issues of standardization of electronic economic activity. At the same time, states, recognizing the text of the convention as binding for themselves, could accede only to those additional protocols that would be acceptable to them.

This structure has long been successfully used in international practice. Thus, the text of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 was subsequently expanded and refined through the development of a series of additional protocols.46 At the same time, the states parties to the European Convention can choose which protocols they consider necessary to accede to. The structure of the Convention on Human Rights and Biomedical Sciences of 199647 is similar.47 This convention (Article 31) provides for the preparation and adoption of protocols that develop the principles contained in the convention in specific areas (transplantation of organs and tissues, cloning, etc.). The protocols are open for signing by the states-participants of the specified convention, however, the states cannot accede to the protocols if they have not ratified the text of the convention itself.

The choice of this option for the regulation of e-commerce allows us to successfully solve another very important task: to create a set of uniform norms at the international and national levels that would regulate a new area of ​​social relations in a harmonious and comprehensive manner, and not only unify the current law. States, having agreed to the general rules regarding electronic commerce, have the opportunity not to join the protocols that they consider unacceptable to themselves. And the international community as a whole is given the opportunity to avoid “over-urgulation” and leave enough room for private initiative, which is sorely needed in e-commerce.48

The development of e-commerce requires special international legal regulation, which no one doubts today. However, the choice of a legal regulation option should be approached with extreme caution: if an erroneous line is chosen, the existing barriers to the spread of electronic commerce will not be removed and a significant number of new various legal and technical problems will arise. At the same time, the choice of a well-thought-out regulation option will create an effective legal framework and turn on the “green light” for the application of new technologies in international trade.

General provisions and legal framework for e-commerce

§ 1. Formation of the legal foundations of electronic commerce in Russia and foreign countries

§ 2. Legal concept, content types of electronic commerce in the theory and legislation of Russia and foreign countries.

§ 3. Conflict-of-law regulation of electronic commerce.

International legal regulation of electronic commerce (UNCITRAL model laws and the UN Convention 1996-2005).

§ 1 UNCITRAL Model Law on Electronic Commerce 1996

§ 2 UNCITRAL Model Law on Electronic Signatures 2001

§ 3 United Nations Convention on the Use of Electronic Communications in International Contracts 2005

National legal regulation of electronic commerce

§ 1. North American model of legal regulation of electronic commerce.

§ 2. Model of legal regulation of electronic commerce of the countries of the European Union

§ 3. Legal regulation of electronic commerce in Russia.

Recommended list of dissertations

• Civil law regulation of e-commerce in Russia: a modern legal model 2013, candidate of legal sciences Saliev, Ildar Rustamovich

• Civil law regulation of electronic commerce 2007, candidate of legal sciences Kostyuk, Irina Viktorovna

• International legal regulation of electronic communications in the European Union 2010, candidate of legal sciences Shishlov, Alexander Alexandrovich

• Legislative regulation of the use of digital signatures in countries with developed market economies: a comparative legal analysis 2011, candidate of legal sciences Shchegoleva, Svetlana Vyacheslavovna

• Form in international civil and commercial circulation 2007, candidate of legal sciences Grekova, Isabella Leonidovna

Similar theses majoring in Civil Law; business law; family law; international private law”, 12.00.03 VAK code

• Civil law regulation of the use of digital signature in the field of electronic data interchange 2001, candidate of legal sciences Manshin, Sergey Viktorovich

• Civil law regulation of trading activity (trade) 2010, candidate of legal sciences Kotova, Elena Anatolievna

• Legal regulation of the provision of Internet services 2002, candidate of legal sciences Petrovsky, Stanislav Vitalievich

• Formation and development of the concept of "electronic document" in foreign and Russian legislation 2004, candidate of historical sciences Kukarina, Yulia Mikhailovna

• Legal problems of state regulation of foreign trade in goods: International legal aspect 1998, candidate of legal sciences Shishaev, Alexey Ivanovich

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172. UNCITRAL Model Law on Electronic Signatures (adopted in Vienna on July 5, 2001 at the 34th session of UNCITRAL), together with the Guidelines for the Application of the UNCITRAL Model Law on Electronic Signatures - Legal System Consultant Plus.

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In fact, the Internet does not belong to public relations. Technically, the Internet is a collection of computers connected by a network used to store and transmit information. However, legal relations may arise in the course of using the Internet.

A feature of such legal relations is that they are mostly extraterritorial in nature. Unilateral application by the state of legal norms governing similar relations, without taking into account the experience of international practice and the legislation of other countries, will be ineffective. This is evidenced by the repeated unsuccessful attempts of such countries as the USA and Great Britain to extend their system and legislation to relations on the regulation of conflicts on the Web, to introduce regulation of the expansion of information on the Internet.

It is well known that excessive legal regulation hinders the development of social relations. In the traditional, so-called off-line business, activities in the commercial sector are not regulated and are developing faster. But at the same time, it must be taken into account that in commercial business such development is possible due to its long history of development.

A wealth of experience has been accumulated, established business practices, and it is also important that the parties deal with real people, and not with virtual, impersonal entities. Unlike the traditional one, on-line business has just begun to take shape. Due to a certain specificity, traditional methods for solving problem situations are no longer suitable.

For the normal functioning and development of e-commerce, it is necessary to introduce a regulatory definition of the mechanism for carrying out transactions using the Internet and legalize the corresponding methods of mutual settlements. For this you had to do:

1) recognition of legal force for transactions that are carried out in electronic form;

2) determining the procedure for making electronic payments;

3) creation of regulatory conditions for electronic document management: there is confirmation of the authenticity and authorship of an electronic document through the use of digital signature tools;

4) determination of the legal regime for posting information on the Internet;

5) solving information security issues, establishing the procedure for using cryptoprotection tools.

Thus, it became obvious that the legal regulation of these issues will contribute to the rapid development of electronic commerce. So, on January 30, 1997, the UN General Assembly adopted the Model Law "On Electronic Commerce" developed by the UN Commission on International Trade Law.

This law was supplemented by Article 5 b, adopted by the Commission at its thirty-first session in 1998, invoking paragraph 2 of General Assembly resolution 51/162 of 16 December 1996, in which the Assembly recommended that all States, when enacting or revising their laws, give due consideration to provisions of the Model Law, in view of the need to unify legislation, may be applicable to alternative paper methods of transmission and storage of information.

This was the first step in the development of international law in the field of e-commerce regulation. This document is advisory in nature and is intended primarily for use by states as a basis for the development of national legislation. This international document laid the legal foundations for activities in the field of electronic commerce, gave definitions to basic concepts such as an electronic document, electronic document management, electronic signature, the author of an electronic document, and an information system. He recognized the legal force of documents in electronic form, defined the conditions for an electronic signature as a means of confirming the authenticity and integrity of an electronic document in the preparation and adoption of the Model Law on Electronic Commerce.

The United Nations Commission on International Trade Law (UNCITRAL) considered that the Model Law would serve as an effective tool for States that are updating their laws, provided that background information and explanations are provided to the executive governments and parliaments on how to provide them with assistance in use of the Model Law. The Commission also took into account the likelihood that the Model Law would be applied in a number of States in which the methods of transmission of communications provided for by this law are not sufficiently known. It is intended to assist users of electronic data transmission and those involved in scientific work in this field. One of the main objectives of the Law was to bring to the attention of national legislators internationally recognized norms that could set out how to remove certain legal obstacles and create a sound legal basis for so-called "electronic commerce". The principles enshrined in the Model Law are useful to individual users involved in electronic commerce in developing certain contractual solutions that can be used to overcome legal obstacles that create obstacles to the expansion of the use of electronic commerce.

The Model Law at the international level can in some cases be useful as a tool for interpreting international conventions and other international instruments that create legal barriers to the use of electronic commerce by, for example, requiring the mandatory written execution of certain documents and contractual provisions.

Equally important to the development of global Internet commerce was the UNCITRAL Model Law on Electronic Signatures, which was adopted in 2001. The purpose of this Law was to strengthen legal certainty regarding the use of electronic signatures. A presumption is established that electronic signatures, if they meet certain criteria of technical reliability, are considered equivalent to a handwritten signature.

Together with the norm-setting activities of the UN, the European Union also takes an active part in the formation of international law in the field of electronic commerce. In 1998, a Proposal for a Directive of the European Parliament and of the Council of the European Union "On Certain Aspects of Electronic Commerce in the Internal Market" was adopted. The main objective of this document is to ensure the conditions for the proper functioning of international electronic commerce between the Member States of the European Union. This Directive defines the legal regulation of a significant range of public relations in the field of electronic commerce.

This document contains a set of rules that govern certain aspects of e-commerce in more detail. The mechanism for concluding electronic contracts is sufficiently fundamentally regulated, the requirements that they must comply with, and the established rules for determining the moment of concluding a contract are defined.

The second important document that forms the European law of electronic commerce is the EU Directive "On the legal basis of the Communities for the use of electronic signatures" adopted in December 1999. This document fully regulated relations in the field of the use of electronic signatures. The requirements to be met by means of electronic digital signature are established, the principles of their use are determined, the activities of certification centers are regulated, the procedure for providing certification services is determined.

National legislation is also actively developing. A number of countries have adopted various laws governing e-commerce activities. In Ukraine, the beginning of the legal regulation of activities in the field of high technologies was laid in 1998 by the adoption of the Law "On the National Informatization Program" by the Verkhovna Rada of Ukraine. At the same time, the Concept of the National Informatization Program was approved and the Law of Ukraine "On Approval of the Tasks of the National Informatization Program for 1998-2000" was adopted.

The next step was Decree of the President of Ukraine No. 928 of July 31, 2000 "On measures to develop the national component of the global information network Internet and ensure wide access to this network in Ukraine."

On May 22, 2003, the Verkhovna Rada of Ukraine adopted the Law of Ukraine "On Electronic Documents and Electronic Document Management", which defines the concept of an electronic document and electronic document management, consolidates global trends in recognizing the legal force of an electronic document, indicates the rights and obligations of subjects of electronic document management, their responsibility, etc.

The Law follows the functionally equivalent approach to understanding an electronic document proposed by the UNCITRAL Model Law on Electronic Commerce. At the same time, the Law of Ukraine "On Electronic Digital Signature" was adopted.

So, in the context of all-consuming globalization, the problems of legal regulation of Internet commerce cannot be solved unilaterally at the state level. This encourages almost all states of the world to improve and unify them legal regulation of the sphere of international electronic commerce.

Along with the benefits of e-commerce, there are potential risks, including tax evasion, fraud, infringement of intellectual property rights, and the like. These risks are real, but in developed countries they manage to be managed in a way that does not destroy e-commerce. In Ukraine, the fight against computer crime, including in the field of e-commerce, is carried out by the formed units of electronic intelligence.

Thus, despite the fact that the Internet is a global information system, e-commerce has not yet received a "world" level. It traditionally continues to remain within the framework of national jurisdiction.

At the same time, a more complex "transnational" composition of the participants in the process is possible, exacerbating the problem of the choice of law. The speedy solution of these problems is necessary for Ukraine, because cooperation with foreign partners is developing more and more actively, and today, in the era of globalization, it is difficult to resolve any issues without modern means of handling documents in electronic form, which is the basis for concluding electronic contracts and developing e-commerce in in general.

Measures to increase the role of e-commerce, which are in the competence of the government, industry specialists and investors, include:

Create an adequate statistical database of e-commerce;

Promoting the development of small and medium-sized Internet businesses, ensuring participation in e-commerce of this segment of the global economy means creating jobs and improving the well-being of the population;

Create a system for training and advanced training of e-commerce workers. The industrial economy, where productivity is determined by the number of machines, is being replaced by an information-based economy. New technologies require new professionals. Unfortunately, the necessary special education today has a very limited number of people. Professional development is required not only by employees themselves, but also by managers of online stores;

Ensure international cooperation in the field of e-commerce at the level of governments of countries and at the corporate level. Otherwise, there is a risk that a huge segment of the world's population will be excluded from the distribution of economic benefits from this super-profitable business; the Ukrainian state should promote the development of e-commerce.