Tuesday, July 04, 2006
A Whole Lot of Sense?
Sec. 37 of the E-Commerce Act reads: Statutory Interpretation. Unless otherwise expressly provided for, the interpretation of this Act shall give due regard to its international origin and the need to promote uniformity in its application and the observance of good faith in international trade relations. The generally accepted principles of international law and convention on electronic commerce shall likewise be considered.
Simply put, whenever a situation arises wherein one or any provision of the Act is to be interpreted or given meaning, one always has to remember that:
The Act has an international origin.
Our E-Commerce Act was patterned from the UNCITRAL (United Nations Commission on International Trade Law) Model Law on Electronic Commerce, which was adopted in 1996. This Model Law is intended to facilitate the use of modern means of communications and storage of information. Accordingly, anyone tasked to interpret the Act would do well to consider the Model Law and the policy considerations behind it.
The Act conforms to the Model Law
No provision should be read or understood in such a manner as to deviate from or contradict its international counterpart, in the form of the Model Law. Of what use would it be to have an international Model Law, and have conflicting domestic laws patterned after it? To provide a model, after all, is to set an example.
The Act recognizes the importance of good faith in international trade relations.
In making sense of a provision, one must always remember that one of, if not the, primary purpose of the Model Law to which the Act was taken after, is the facilitation of paperless communications and commerce. Business and commercial transactions then being focal considerations, it follows that good faith itself, as a necessary element in any business relation must likewise be given weight. No interpretation that would do away with this basic requisite shall be allowed.
The Act was formulated having in mind the generally accepted principles of international law and the convention on electronic commerce
What could possibly be these principles be, one is prone to ask. The following excerpt would be most helpful:
As to the general principles on which the Model Law is based, the following non-exhaustive list may be considered: (1) to facilitate electronic commerce among and within nations; (2) to validate transactions entered into by means of new information technologies; (3) to promote and encourage the implementation of new information technologies; (4) to promote the uniformity of law; and (5) to support commercial practice. While the general purpose of the Model Law is to facilitate the use of electronic means of communication, it should not be construed in any way as imposing their use. (Guide to the Enactment of the UNCITRAL Model Law on E-commerce).
NOTE
Much like its more “conventional” peers (read: non-techie laws) which are, more often than not, also borrowed from foreign sources, the E-Commerce Act, given this provision, already suffers from a handicap right from the get-go --- its applicability to local settings.
While it is true that time seems to blur away more and more borders between states, it cannot be denied that there would still be major differences in terms of the prevailing conditions (specifically, in technological advances) and pre-existing cultural elements between countries. Given this, would not putting more emphasis on uniformity somehow restrict the law insofar as adaptability is concerned? In our preoccupation to make the Model Law succeed, as a whole, wouldn’t its local offspring suffer when it is sought to be applied here, where not all conditions present when the framers of the Model Law, can be similarly found?
We seem to think so.
# posted by uberjam @ 3:33 PM 
