Washington Law Review, Index, Volume 79, 2004

Consists of indexes by author, title, and subject

Emerging Issues in Electronic Contracting, Technical Standards and Law Reform

The explosive growth of electronic commerce transactions in recent years has added fuel to efforts to harmonize international commercial law. Organizations such as the International Institute for the Unification of Private Law (UNIDROIT), the United Nations Commission on International Trade Law (UNCITRAL) and the Hague Conference on Private International Law are all participating in an emerging global debate concerning the changes that should be made to the form or substance of international commercial law to accommodate innovation in the technology of international trade. Many of the important legal issues raised by cross-border electronic commerce in the 1970s and 1980s have already been successfully addressed by law reform at the national level and by the work of international organizations undertaken in the 1990s. The scope of electronic commerce at that time was narrowly confined to electronic funds transfers or the exchange of data messages, and networked computer systems were massive, complex and highly secure systems. Reforms targeted at this type of electronic commerce included establishing new bodies of private law and government regulation to manage the financial risks created by electronic financial services, and the removal of barriers to the use of electronic media in commercial contracts and communications. But innovation in electronic commerce proceeds at breakneck pace, and it is unclear whether the commercial law reforms of the 1990s will be adequate to promote the rational and orderly development of global markets in the future. It is possible that changes now taking place in the electronic contracting technologies may significantly change the terms of this debate. This is because new, more powerful technologies now under development are intended to convert a considerable range of business customs and practice today performed by people into formal algorithms executed by computers. These technologies are being developed to take advantage of the great advances the Internet has made over old-style electronic commerce technologies: global reach, low barriers to entry, intuitive interfaces, and ubiquitous presence. If such new electronic contracting technologies come into widespread use, then the norms embodied in them may come to have the power to control commercial conduct in a manner normally reserved for law. Efforts to reform international commercial law may need to include mechanisms to ensure that should such economic power arise, it would be exercised in a fair manner

Catalytic Impact of Information Technology on the New International Financial Architecture

The sudden emergence of the Internet as a global network threatens to eclipse the importance of the global information infrastructure painstakingly built by financial institutions and their regulators over the past three decades. The open public nature of the Internet threatens the value of the closed proprietary networks developed by financial institutions that now face serious problems in integrating their legacy systems and new Internet systems. Information system security, once a dreary back office matter, is now central to the success of e-commerce business plans. Before financial institutions can capitalize on their expertise in information system security, they will have to overcome problems that have recently emerged in security of their existing legacy systems and translate their existing expertise into terms that are relevant to e-business security. The challenges posed to regulated financial markets by the sudden democratization of the global information architecture may be offset by competitive opportunities only if regulated institutions can adapt quickly and effectively to the rigors of this new environment. Regulators will have to find a middle path between stifling regulated entities, permitting unregulated competitors to steal the show, and not maintaining the necessary prudential oversight of financial markets within which investors are exposed to rapidly rising levels of risk

Introduction to Mobile Money in Developing Countries: Financial Inclusion and Financial Integrity Conference Special Issue

This special issue of the Washington Journal of Law, Technology & Arts contains papers contributed to a conference held at the University of Washington School of Law on April 20, 2012. The conference, entitled Mobile Money in Developing Countries: Financial Inclusion and Financial Integrity, was organized by the University of Washington School of Law with the support of the Linden Rhoads Dean’s Innovation Fund, Deakin University School of Law, Australia, and the United Nations Commission on International Trade Law (UNCITRAL)

The Emperor\u27s New Clothes: The Shocking Truth About Digital Signatures and Internet Commerce

This Article critiques a specific set of assumptions about specific application of digital signature technology: that contracts will be formed over the Internet among parties with no prior relationships through reliance on digital signature certificates issued by trusted third parties to establish the identity of the parties. This application for digital signature technology was once seen as both its most ambitious and most promising application because, for parties with no prior knowledge of each other, there is not yet a reliable system of online identities in Internet commerce. Parties with an ongoing commercial relationship can absorb the cost of offline communications such as faxes, telephone calls or face-to-face meetings to negotiate and execute an agreement governing the setting up of a reliable system for online authentication of parties to wholly electronic transactions. Parties that want to rely exclusively on online communications to create the framework for contracting as well as to enter into contracts, however, face a problem of infinite regress: how can the online communications that set up the system for confirming online identities itself be authenticated with nothing more to rely on than online communications? Many supporters of digital signatures believed legislation was essential to cut through this Gordian Knot. Legislation could authorize parties unable to use a prior relationship or offline communications to confirm the validity of online identities to rely on digital signature certificates instead. Much legislation regulating the use of digital signatures is based on an unstated premise: liabilities must be imposed by law because private agreements will not be adequate to the task of regulating this technology. This Article will summarize the original consensus regarding the role of digital signatures in electronic commerce, explain why that consensus was mistaken on many points, describe commercial applications of digital signatures that are gaining market share today and contrast them with the original consensus, and consider the implications of a major misperception of market trends for the future of electronic commerce legislation. A brief description of digital signatures and public key infrastructure is included in the appendix to this article

Can China Promote Electronic Commerce Through Law Reform? Some Preliminary Case Study Evidence

The government of the People’s Republic of China (P.R.C.) has announced its intention to make China a global leader in innovation by 2020. Many Chinese business leaders share this goal. The primary focus of this national strategy is to transform China into an exporter of high-technology products based on Chinese designs rather than merely a low cost, high volume manufacturer of products based on technology developed in other countries. This paper will examine the implications for this strategy with regard to the use of computerized management information systems by Chinese businesses, and its relationship to recent law reform efforts intended to promote greater use of electronic commerce among Chinese businesses. This paper considers three case studies of recent reforms of P.R.C. commercial law in light of their contributions to this strategy, and finds that the results so far are quite mixed. The first case study looks at a domestic standard for accounting software issued in 1989 that successfully removed obstacles to the greater use of computerized accounting systems by local businesses and promoted the growth of the domestic accounting software industry. The second and third case studies involve P.R.C. legislation based on model laws developed by United Nations Commission on International Trade Law (UNCITRAL) developed to assist legislators in trading nations to harmonize their national commercial laws in order to eliminate barriers to international trade. The second case study looks at the inclusion of general electronic commerce enabling legislation in the 1999 Contract Law which in theory removed impediments to the use of electronic commerce by Chinese businesses but in reality appears to be too abstract and general to provide much certainty to parties wishing to form contracts using electronic media. The third case study looks at the 2004 Electronic Signature Law which promotes the use of a specific type of technology for authentication. While it is too soon to know whether this law will achieve its intended objectives in China, evidence from other countries with similar laws suggests that it may not