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This chapter explores the use of choice-of-law, choice-of-court, and arbitration clauses in consumer contracts, including electronic commerce. It explores the question of the extent to which contracting choices effectively made unilaterally by firms should be enforced against consumers. Arguments for regulation may have more political traction in this setting than in the commercial context. This chapter discusses the supply and demand sides of the law market for consumer contracts generally. It also illustrates the law market in action by exploring some similarities and differences in the features of the law markets for credit cards, payday loans, insurance contracts, and electronic commerce. These four contexts involve diverse market environments that provide a range of law market lessons.

Electronic commerce refers to all forms of commercial transactions that involve both organisations and individuals, and that are based on the processing and transmission of data through electronic media. It also refers to the effects of the electronic exchange of commercial information on activities such as organisational management, contracts, and legal and regulatory activities, among others. The development of electronic commerce was found to have caused favourable changes in society, in the economy, and in business, especially in some specific industries. Although the insurance industry already had the characteristics of a ‘new economy’, electronic commerce in the London Insurance Market Network (LIMNET) showed slow growth. This chapter looks into the social and technical factors that interfered with the development of electronic commerce in LIMNET and addresses why brokers and underwriters still prefer face-to-face negotiations over electronic transactions.

Although user anonymity is one of the perceived qualities of the Internet, this has become a problem for those who wish to promote commercial transactions through this medium. It becomes difficult for people to determine whether the other party that they transact with can be trustworthy or not. Public key infrastructures (PKIs) refer to systems that rule over the provision of trust services such as digital certificates by trust service providers (TSPs). PKIs are one of the proposed solutions in assuring users with certified credentials for secure exchanges made over the Internet. Thus, several countries are trying to come up with a common infrastructure model for open network electronic commerce. This chapter discusses whether these trust services can offer commercial feasibility for TSPs and promote responsiveness to user concerns about authentication through formulating strategies for market entry and development.

Chapter Four sets out the European economic law framework that governs trade and investment in the media sector (excluding intellectual property rights). It explains how Europe's national media sectors were gradually brought within the European Union's rules of free movement and fair competition, including the Audiovisual Media Services Directive and the Electronic Commerce Directive. In this process, European economic law has accommodated non-market public policy goals. These include the protection of the public from harmful media content through rights of derogation that are closely linked to European human rights law. The Chapter also looks at the transition from common EU rules formulated for the highly regulated broadcast sector to new rules that address the challenges of new media services. Finally, Chapter Four looks at the application of EU competition law to the media sector, including the tension between national subsidies to public service media and the rules limiting state aid.

This book explores the global governance, particularly by intergovernmental institutions, of global electronic networks and related information and communications technology (ICT). It looks at the politics underlying global rules and regulations as well as questions of power and social purpose in network or ICT global governance. It also examines governance “from above” while also emphasizing how global governance looks “from below,” particularly from the perspectives of the developing countries and civil society groups advocating public interest objectives. This chapter serves as an introduction to the discussions that follow. It provides an overview of governance mechanisms pertaining to the information, communication, and commerce distributed over electronic networks, including the frameworks for intellectual property, cybersecurity, privacy protection, and electronic commerce. It also outlines the history of network global governance from 1850 to the present and discusses some of the major global governance mechanisms relating to network infrastructure and related transport services.

The United States championed the creation of new rules for the digital economy in TPP. Analyzing this effort as “digital megaregulation” foregrounds aspects that the conventional “digital trade” framing tends to conceal. On both accounts, TPP’s most consequential rules for the digital economy relate to questions of data governance. In this regard, TPP reflects the Silicon Valley Consensus of uninhibited data flows and permissive privacy regulation. The chapter argues that the CPTPP parties endorsed the Silicon Valley Consensus due to a lack of alternatives and persistent misperceptions about the realities of the global digital economy, partly attributable to the dominant digital trade framing. It suggests a new approach for the inclusion of data governance provisions in future international trade agreements that offers more flexibility for innovative digital industrial policies and experimental data regulation.

Established in 1998, the Internet Corporation for Assigned Names and Numbers (ICANN) is a private corporation that illustrates how the Internet and electronic commerce are giving rise to new forms of global governance. ICANN regulates the assignment of domain names and Internet Protocol (IP) addresses used to identify and interconnect Internet users. This chapter examines issues of power, institutions, and participation in the context of ICANN. It looks at South Korea’s involvement in ICANN and shows how the organization has been dominated by Western countries (led by the United States) and transnational firms (such as intellectual property interests) at the expense of the developing countries and transitional economies, dubbed the “rest of the world” (ROW). The agenda and demands of ROW participants from civil society tend to be in conflict with the agenda of their own governments and exceed those in intergovernmental organizations. The chapter recommends a series of changes to ICANN in order to enhance the ROW’s effectiveness in terms of participation.

Of key importance to the challenge of cyberspace to all areas of law is the distinction between space and cyberspace. Space is the lawyer's natural environment. It represents our place in the physical environment and is the cornerstone of our legal systems, domestic and international. Cyberspace is the global network of interdependent information technology infrastructures, telecommunications networks, and computer processing systems. How does the rule of law apply in cyberspace? If we are to have any hope of producing effective de facto jurisdiction for cyberspace content, international lawyers must first accept there is a distinction between space and cyberspace. Cyberspace may (when viewed from the space of the physical environment) look like a communications media. There are areas where international cooperation and perhaps even formalization of law through treaty obligations are likely to be successful. They include e-commerce where the UNCITRAL Model Law on Electronic Commerce has been extremely successful in bringing harmony and international recognition; intellectual property rights where a number of the World Intellectual Property Organization treaties and others such as the recently finalized Anti-Counterfeiting Trade Agreement have been or are likely to be effective; and a number of criminal law measures where the Council of Europe Convention on Cybercrime has been effective in providing cooperation on matters of illegal interception and computer-related fraud. However, if lawyers want to create de facto control over content it cannot be done through legal documents; it must be done through a web of terms and conditions of service and through Lessigian code-based solutions.

European law recognises various limits on the primary and secondary liability which may be imposed upon internet intermediaries for the acts of third parties. These limits fall into four categories: first, ‘safe harbours’ which insulate passive and neutral information society service providers from monetary liability for transmitting, caching, and storing third parties’ information; second, protection from general duties to monitor third parties’ information and activity; third, limits necessary to protect the fundamental rights of intermediaries and their users; and fourth, miscellaneous general limits on injunctive relief.

Vast amounts of information result from business and consumer search, communication, and transactions. All this information can enhance market efficiency and consumer surplus as firms tailor products to buyers. But, there is increased risk of information loss. What issues should be on the Digital Agenda with regard to information loss, and what data are available to inform and generate incentives for consumer, business, and policy interactions in the information marketplace? This paper reviews the situation and points out where we need more thought and more data. Topics include: (1) Frameworks for analysis: How should we model the information marketplace, particularly with regard to the benefits and costs of information aggregation and protection? (2) Quantification and data: What is the evidence on the prevalence and nature of information loss, and what are the costs of information loss, and to whom? (3) Market and Policy Response: What do we know about the efficacy of market vs. other approaches to incentivize market participants to avoid loss or remediate after information loss? Throughout, of particular interest is the international dimension of the information marketplace. What issues arise when countries differ in their attitudes and policies toward the information marketplace?

The role of property in fostering good governance, robust economies, and strong civil societies has received fresh attention in the wake of the dramatic global changes that have occurred during the past decade. Innovative and cost effective ways to formalize property rights have emerged, linking these with new strategies and tools for building and maintaining the infrastructure necessary for sustaining a property regime. Land administration functions have been re-engineered and there have been legal reforms that have focused on modernizing, standardizing, and simplifying legislation relating to land and property. There have been new concepts of risk management, the introduction of new technologies, and a variety of organizational reforms. Many of these reforms have been the consequence of political changes, especially as a result of the collapse of communism, the adoption of a market driven approach to the economy and the impact of information technology. The processes of re-engineering have focused on a diverse package of measures dealing with land tenure security, land and property transactions, and access to credit. They have also been concerned with the provision of support for physical planning, the sustainable management and control of land use and of natural resources, and facilitating real property taxation. Internationally funded projects have also been concerned with the protection of the environment, the provision of land for all people whatever their gender but especially for the poor and ethnic minorities, and the prevention of land speculation and the avoidance of land disputes. As Burns et al. have reported: … The policy environment for land titling projects is becoming more complex, and a range of issues must now be addressed if a project is to pass through a Multilateral or Bilateral funding agency’s approval process. These include impact on gender, impact on the environment, resettlement requirements and impact on indigenous groups (Burns et al 1996)…. Gender issues, fix example, are becoming increasingly important with the international funding institutions demanding that gender equity be present both in law and in practice; this requires performance indicators to demonstrate compliance with the regulations.

A key component of land administration is the management of land and property related data. Such data may be held in manual or digital form although, increasingly, all land related records are being computerized for ease of storage and retrieval. Data are raw collections of facts that, from a land administration perspective, may be gathered and written down as numbers and text, for instance in a surveyor’s field book, or collected and stored digitally through the use of ‘data loggers’ and computers. They may also be held graphically as on maps or aerial photographs. Data become information when processed into a form meaningful to a decision-maker. The usefulness of this information will depend upon the quality of the data and especially on the extent to which they are up to date, accurate, complete, comprehensive, understandable, and accessible. Even then, good data do not necessarily produce good management decisions since other factors may be involved, such as the qualities of the data user; the converse is however true, namely that poor quality data will almost certainly result in bad decision-making. Land and property related data are increasingly managed within formal land information systems (LIS). As with all information systems, LIS use a combination of human and technical resources, together with a set of organizing procedures, to produce information in support of management activities (Dale and McLaughlin 1988). Increasingly, the technologies that drive the data processing are components of geographic information systems (GIS). There has been much debate about the nature of GIS, some seeing them as sets of hardware, software, and data while others have seen them as all-embracing institutional arrangements of which the technology is only part. In the following discussion, GIS will be treated as the former and restricted to the acquisition and assembly of spatial data; their processing, storage, and maintenance; and their retrieval, analysis, and dissemination. By analogy with the motor car, GIS are the engines that power the car and data are the fuel; operating a transportation system is, however, a more complex process.