Review of e-commerce legislation harmonization in the Association of Southeast Asian Nations (ASEAN) [UNCTAD/DTL/STICT/2013/1]
Towards e-commerce legal harmonization in ASEAN
The Association of Southeast Asian Nations (ASEAN) was the first developing region to prepare a harmonized e-commerce legal framework consistent across jurisdictions, providing guidelines to develop common objectives and principles for electronic (e-commerce) legal infrastructure.
The process of harmonization started more than 10 years ago in support of ASEAN regional economic integration objectives through various initiatives aiming at promoting economic growth, with information and communication technologies (ICT) as a key enabler for the ASEAN’s social and economic integration: the e-ASEAN initiative (1999), the e-ASEAN Framework (2000), the ASEAN Economic Community (AEC) Blueprint (2007). The latest initiative is the ASEAN ICT Masterplan 2015 adopted in 2011 by the tenth ASEAN Telecommunications and IT Ministers (TELMIN). It focuses on six strategic thrusts: economic transformation, people empowerment and engagement, innovation, infrastructure development, human capital development, and bridging the digital divide. In support of some of the planned initiatives, the Masterplan envisages the establishment of harmonized e-commerce laws in each member country to create a conducive ICT environment for businesses and to build trust in particular by promoting secure transactions within the ASEAN, developing a common framework for information security, and promoting cybersecurity.
The ASEAN has received support from the international community, including from UNCTAD, in order to meet the objectives set in those plans. With regard to e-commerce harmonization, a joint AusAID/ ASEAN study was commissioned in 2004, resulting in a multi-year (2004-2009) project assisting ASEAN to meet targets set in the Roadmap for Integration of the e-Commerce Sector as part of the e-ASEAN Framework Agreement. The e-commerce legislation harmonization focused on electronic transactions laws, and less on other cyberlaws. The results of the project were positive, with four new electronic transaction laws being implemented during the project timeframe, resulting in 8 out of 10 ASEAN members having e-commerce laws in place by the end of the project in
2009. However, two countries (Cambodia and the Lao People’s Democratic Republic) had, at that time, not passed electronic transaction legislation projects.
From 2003 to 2009, UNCTAD has also supported this process by providing assistance to the Governments of Cambodia and the Lao People’s Democratic Republic. A series of capacity-building and awareness raising workshops were organized for policy and law makers. Two draft e-commerce laws were prepared in coordination with the national working group on e-commerce in both countries. In addition, UNCTAD featured the pioneering role of the ASEAN in this area in its flagship report The Information Economy Report 2007–2008.
Since 2009, no significant regional work has been undertaken on e-commerce law harmonization in the ASEAN. However, various committees and working groups have continued to monitor developments in this field, and individual member countries have made significant progress on updating their laws.
The enacting of laws is only one part of the development of effective legal infrastructure. Even with a law in place, member countries face challenges in implementing, enforcing and promoting the requirements of those laws. The harmonization of laws in the region also depends on countries adopting similar approaches based on international best practice – which has not always been the case as shown in this Review.
The harmonization of e-commerce laws can facilitate development and further regional integration in the ASEAN region in establishing an enabling legal environment which will support e-commerce development as well as other key areas such as:
- Trade facilitation;
- IT-enabled services/outsourcing;
- E-government initiatives;
- Cloud computing;
- Mobile commerce;
- Social networking
With regard to e-commerce specifically, the ASEAN Working Group on E-commerce and ICT Trade Facilitation commissioned a study in 2008, entitled ASEAN e-Commerce Database, to gather comprehensive information on the state of e-commerce activities within the region. The study acknowledged that there is an untapped potential for e-commerce and identified significant barriers to its take-up. In particular it mentioned the lack of consumer trust, the inability to judge the quality of the product during online shopping, payment fraud, privacy, identity theft, and access to complaints systems. In its conclusions, the study stated that a key challenge for many ASEAN countries is to increase Internet penetration to levels that will make e-commerce a viable venue for business. It also recommended the creation of a trustworthy environment for e-commerce, including the establishment of a harmonized framework for cross-border complaints and dispute resolution to discourage fraud, encourage better customer service and improve online sales.
In 2012, UNCTAD proposed to the ASEAN secretariat (ASEC) to carry out jointly a Review of e-commerce legislation harmonization. The purpose was to support the regional integration process, in particular in the realization of the objectives set by the ASEAN ICT Masterplan 2015 referring to the importance of regional harmonization of ICT-related legislation.
The ASEAN–UNCTAD Review builds on earlier achievements in the region. It takes stock of progress in the adoption and implementation of e-commerce laws in member countries and identifies remaining challenges. It also highlights new legal and regulatory issues arising from evolving technologies and applications, such as e-payment systems, cloud computing and mobile commerce.
The study was prepared with the support of the ASEC and the ASEAN Telecommunications and IT Senior Officials (TELSOM) Working Group. To prepare the study, two regional workshops on Cyberlaw Harmonization were organized (the Philippines, 10–11 November 2012; Viet Nam, 6 May 2013). The workshops discussed advances and remaining challenges in adopting and enforcing e-commerce legislation. They also offered an opportunity for ASEAN delegates to discuss legal and regulatory issues around cloud computing and m-commerce. The discussions and the outcome of the first workshop were reported to the twelfth ASEAN Telecommunications Senior Officials Meeting (TELSOM) in the Philippines in 2012 and the Review was presented at the TELSOM–ATRC Leaders’ Retreat (Viet Nam, 11–12 April 2013).
In addition, two online surveys on legal frameworks for e-commerce targeting ASEAN member State government representatives and e-commerce businesses were conducted in preparation of the Review. The results of the surveys were discussed at the first workshop (see annex 2). A thorough desk review of laws and developments was also undertaken to complement the survey results.
 ASEAN ICT Masterplan, 2015, http://www.asean.org/resources/publications/asean-publications/item/asean-ict-masterplan-2015.
 ASEAN e-Commerce Database, 2009 : http://www.asean.org/resources/item/asean-e-commerce-database-project-2.