Review of e-commerce legislation harmonization in the Association of Southeast Asian Nations (ASEAN) [UNCTAD/DTL/STICT/2013/1]
Identification of key challenges
- Differences in legal approach
- Absence of independent, well-resourced regulators
- Lack of skills and training
- Slow legislative process
- Low levels of awareness in government
- Resource constraints
- Lack of continuity
- Rapid emergence of new issues
Several key challenges to e-commerce legal harmonization were identified in the project surveys (see annex 2), in ASEAN member country presentations at the workshop in Cebu, in group discussions at the workshop, and in the detailed research and analysis undertaken for the country chapters. The main challenges to harmonization are discussed below.
Differences in legal approach
There are significant differences in the overall legal approach that has been taken in each country. For example, omnibus laws have been developed in Indonesia, the Lao People’s Democratic Republic and Viet Nam versus specific laws in the other jurisdictions. This can make it difficult to identify and compare legal requirements in the 10 jurisdictions for businesses who wish to operate in the region. It is generally important for all laws to be transparent to the community who will need to abide by them.
Omnibus laws sometimes suffer from a lack of focus and of specific regulatory agencies. At the same time, it is understandable that some jurisdictions which face difficulties in developing and passing legislation have chosen to start the process with this approach. Hopefully, these laws will be strengthened by additional specific regulations over time.
While there is variation in the legal system in the region, to date these do not appear to have had a negative impact on the harmonization of laws in this field. ASEAN member countries that have common law systems benefit from being able to consider precedents from other common law jurisdictions when interpreting legislation. Over time this has clear potential benefits for harmonization.
Absence of independent, well-resourced regulators
In practice, many legal issues require the attention of a specific, focused regulator – and this is missing in some jurisdictions. A regulator with adequate funding and secondary rule-making powers is especially important in the new technology field, characterized by rapid changes. A well-resourced, flexible regulator can usually address emerging issues through developing guidelines or using test cases – and this process is much faster than waiting for parliament to update legislation.
Lack of skills and training
Some member countries face a lack of skills and training, especially in drafting, interpreting and enforcing laws. As noted above, there have been several capacity-building projects in the region, resulting in the training of parliamentarians, the judiciary and policy makers. However, staff turnover and promotion rates are often considerable, raising the need for additional training.
Slow legislative process
Member countries reported frustration at the slow pace of the legislative process (including significant backlogs) in some jurisdictions. Cambodia and the Lao People’s Democratic Republic have faced this issue for many years, although the recent passage of the e-commerce law in the Lao People’s Democratic Republic is a positive development.
Low levels of awareness in government
Several member country representatives at the Cebu workshop reported a continued low level of awareness of e-commerce and cyberlaw issues in government.
Member country representatives at the Cebu workshop reported that resource constraints and gaps in funding have caused some concerns in ASEAN. For example, there was a significant gap in funding between the end of the AusAID funded project in 2009 and the current study.
Lack of continuity
Member country representatives at the Cebu workshop also reported a lack of continuity in personnel with knowledge of the ASEAN harmonization project/ objectives and personnel with relevant technical knowledge about cyberlaws. This may have been exacerbated by the lengthy gaps between regional workshops on e-commerce law harmonization.
Rapid emergence of new issues
The rapid emergence of new issues (such as offshore outsourcing, e-payment, social networks and cloud computing) has required several countries to amend and redraft legislation, for instance pertaining to privacy and data protection.