ICT Investments and Electronic Commerce Initiatives in ASEAN

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ICT Investments and Electronic Commerce Initiatives in ASEAN

in The Journal of World Investment & Trade

References

'Amy Collins, f:1i'ys Closing Next Weck, Business2.U, 27 February 2001; available at: «http://www.business2.com/ebusincss/2()()t/02/27201.htm'). , 2 E. Moskowitz, Still Delivering, Rcd Herring, 2 April 2001, pp. 44-49.

1 This study, conducted by Professor Steve Burdon, Visiting Professor of Electronic Commerce at the University of Technology, Sydney, Australia, was presented at the World E-Conunerce Forum, held in October 2000: Sturdy: Asin Emerging ac E-Commerce Powerhouse, Computcrworld. Vol. 6, Issue 44, 1-7 September 2000, p. 4. 4 Somasekhar Sundaresan, Plotting India's Online Future, International Internet Law Rcvicw, February 2000, p. 16; and Safir Auaud and Himanshu Goswami, 77re India Stock Market Prepares for Take-Off, Intcrnational luternet Law Review, May 2000, p. 32. 5 The Economist, London, 12 January 2002, p. 60. Telecommunications operators in the region, however, particularly Japan's NTT DoCoMo, have refuted lxlirr network as a true 3G network.

6 Rcr Wireless News, 2 June 2003, p. 20. The irony about 3G is that the concept which originated from Europe failed to take offin Europe but debuted successfully in Japan and the Republic of Korea (Asia). The success ofi-mode in Japan prompted NTT DoCoMo to launch the network in Germany in conjunction with Krt� Mobile, which will eventually extend to the Netherlands and Belgium; see The Economist, London, 30 March 2002, p. 56. 7 The Economist, 31 May 2003, p. 61.

I Greenfield projects refer to a private entity or a public-private joint venture that builds and operates a new facility. It includes build-own-transfer and build-own-operate contracts. v Divestiture refers to a private consortium buying an equity stake in a State-owned enterprise. The private stake may or may not imply private management of the company.

10Asia-PacificTelecommunicationIndicators,2002, International Telecommunication Union, Geneva, Switzerland.

11 Malaysia, Thailand, the Philippines and Indonesia are generally referred to as the ASEAN4 countries as they share more or less the same characteristics and growth rates.

12 "Expenditure" includes spending on information technology ("tangible" spending on information technology products purchased by businesses, households, governments and education institutions from vendors and organizations outside the purchasing entity), internal spending on information technology ("intangible" spending on internally customized software, capital depreciation, etc.) and spending on telecoms and other office equipment; see The World Bank, 2002 World Development Indicators, Washington, D.C.

13 Yoshio Utsumi, One Billion New Telecomnmnication Consumers, International Telecommunication Forum Opening, I! Telecom Asia, Hong Kong, 4-9 December 2000.

r4 The Mobile GCllemtitm-IVorld Tretids, International Telecommunication Union, Geneva, Switzerland, available at: «http://www.itu.int/ituncws/issue/2002/08/mobile.html».

15 Business-to-business e-conunerce includes, for instance, a firm and its suppliers who use a common network for ordering, payment and monitoring of shipments. These transactions used to be conducted over private networks using electronic data interchange. With the rise of the Internet, these companies are embracing extranets as the dominant strateLry; see Laura Mannisto, Electronic Commerce ill Asia, in Asia and the Future of the World Lamnomic Systent, International Telecommunication Union Conference, London, 18 March 1999.

"' Elizabeth Blakey, U.S.— Asian E-Commerce Alive and Clickitig, E-Conmmerce Times, 13 July 2000. Forrester Research is a private Internet research company listed on the U.S. NASDAQ stock exchange. It was founded by George F. Colony in 1983 and employs 442 employees worldwide in its five full-fledged research centres throughout the United States and Europe. It identifies and analyses emerging trends in technology and their impact on business and provides companies with rigorous research, practical ideas and objective guidance to help them thrive on technology change. It has a Website at <>. '� The National Office for the Information Economy, 7 March 2003, available at: <

18 They Straits Times, 19 April 2003, p. R1.

19 See Telecommunications International, February 2003, pp. 46-49; European Venture Capital Journal, 1 November 2002, p. 1; and Computer Camping World, June 2003, p. 74. 20 Wireless Week, 21 January 2002, p. 12; and Nation's Restaurant News (New York) 19 August 2002, p. 71. 21 Telecomworldwire, Coventry, U.K., 8 November 2002, p. 1, and 21 March 2003, p. 1. '2 Knight Ridder Tribune Business News, Washington, D.C., 20 November 2002, p. 1. � The Economist, London, 19 October 2002, p. 59. z4 Telecomworldwire, Coventry, U.K., 16 January 2003, p. 1, and 5 June 2003, p. 1. zs The Straits Times, 30 June 2003.

26 World IT Report, London, 10 Apdl 2003, p. 1. 27 Computimes Malaysia, New York, 24 January 2002, p. 1. =" Business Times, Kuala Luntpur, 29 May 2003, p. 7. 29' BusinessWorld, Manila, 19 February 2002, p. 1. 30 Knight Ridder Tribune Business News, Washington, D.C., 23 April 2003, p. 1.

3� A copy of this agreement can be accessed at: «http://www.easeantf.org/docs/eframework agreement.doc».

32 Some analysts have estimated that more than US$ 100 billion in junk bonds will end up in default or restructured; see Telecom Meltdolll/1, Business Week, 23 April 2001.

33BuildiflgtheBridgeto theFuture, a Dialogue with ASEAN Leaders on the An, Recommendations of the IT Private Sector Core Group, 28 November 1999, Manila, Philippines.

34 American Banker, New York, 25 January 2002, p. 1. 3� American Banker, New York, 15 January 2002, p. 18; and Wireless Data News, 27 March 2002, p. 1.

11 The Economist, London, 15 March 2003, p. 7; and Global Telecoms Business, London, April 2003, p. 26. .\7 Conrputcrworld Philippines, Manila, 21 January 2002, p. 1. 38 Wireless Week, 1 April 2002, p. 25. 3" Id. 40 For example, the Philippines' mobile operator Smart Communications Inc., through its subsidiary Smart Money Holdings Corp., has partnered with Sun Microsystems Inc. to develop and market its mobile commerce applications, such as Smart Money, abroad; see Business World, Manila, 26 July 2002, p. 1, and 20 August 2002, p. 1. Immediately thereafter, it was reported that Malaysia's TM Cellular Sdn Bhd had licensed the Smart Money technology from Smart Money Holdings Corp.; see Business World, Manila, 16 September 2002, p. 1.

41 The Economist, London, 11 May 2002, p. 58. 42 One example would be Singapore's early embrace ofUNCtTHAL's Model Law via its Electronic Transactions Act 1998.

43 This model has been criticized for entailing significant governmental licensing and State involvement in digital signature regulation; see Sanu K. Thomas, The Protection and I'romotion o� E-Commerce: Should There be a Global Regulatory Scheme for Digital Signatures? 22 Fordham International Law Journal 1002, 1999. 4° The discussion in this Section summarizes the points presented in an earlier article: see Samtani Anil, Heralding a New Jurisprudence of Cyberspace, Digital Technology Law Journal, Vol. 1, No. 3, November 1999; available at: «http://wwwlaw.murdoch.cdu.au/dtlj/index.html». 45 Aileen A. Pisciotta, Heather M. Wilson and John A. Wenzel, European E-Commerce Directive Will Have Controversial and Far-Reaching Impact, Global commerce Law and Business Report, Vol. 2, No. 7, July 2000, p. 1. 4" Raymond T. Ninimer, International biformatioll Transactions: An Essay on Law in an Infortnatioll Society, 26 Brooklyn Journal of International Law 5.

17BuildingtheBridgeto theFtittire,sitpra, footnote 33. ^" There should also be harmonization of the private international laws of the different jurisdictions so that parties are better able to determine the countries that could legitimately exert jurisdiction over their activities. It should be noted that there continues to be considerable controversy on the appropriate approach to adopt in determining issues relating to the scope of personal jurisdiction. The difficulty is further compounded by the different conceptual approaches, such as the realist, representational, post-modern and libcral-constructivist approaches, that could be employed when dealing with jurisdictional issues. �� As can be easily appreciated, there are various types of communities that exist. These communities also evolve over time. Of particular significance is the current popularity of communities that deal in less interactive and more commercial exchanges as contrasted to the popularity of the interactive and non-commercial communities that dominated the Internet in the past. It should also be appreciated that the Internet allows a single individual or corporate entity to take on different roles, depending on the context and circumstances, and one can be a member of different communities in cyberspace. See, generally, A. Shapiro, T7ie Disappearance of Cyberspace and the Rise ef Code, 8 Seton Hall Constitutional Law Journal 703, 1998; and L. Lessig, T7te Zones of Cyberspace, 48 Stanford Law Review 1403, 1996. 5(l Some commentators have rightly suggested that it is not apt to apply the traditional, territorial and geographical conception of community in the physical world to cyberspace, where an alternative "experiential" conception of community seems to exist; see J. Falk, T7 Meaning of the Web, Information Society, 1998, p. 285; and P. Giordano, Invoking Lati, as a Basis for Identity in Cyberspace, Stanford Law Review, 1998, p. 1. 51 Such as securities regulation and activities impinging on issues pertaining to civil and constitutional liberties. 5z In fact, the better part of English commercial law owes its legacy to the lex nmrcatoria, otherwise known as the law merchant. Lex rnerratoria refers to a body of law that had its source in the trading fairs and merchant communities of medieval Europe and the Middle East. As trading fairs evolved in the late 7th century, merchants developed sets of commercial customs to regulate their activities. These customs followed the merchants when they traveled to other cities, and gradually, over time, these customs gained the force of law as governments recognized that merchants should be able to resolve their disputes by their own rules.

5� These include such norms as open participation, consensus-building, a prioritization of freedom of speech and grassroots organization that have become identifiable with the Internet. 54 As one commentator aptly puts it: "... advanced computer technology undermines the assumptions of older categories [of the law]. For example, interactive networked hyperlinked media eviscerates the idea of authorship, and with it one of the fundamental concepts of ... copyright law ... Second ... advanced computer technology conflates distinctions that made much sense under older regimes and which informed law that grew up in the older regimes. New technology eviscerates the distinctions between public and private, the telephone and mail, the written and spoken word, broadcasting and point-to-point communications, and between the publication, consumption, and distribution ofinformation ... Third, increased automation, with a concomitant reduction in the role of effective human oversight, creates difficulties in the assignment ofliability or legal blame ... The legal system is inhibited in its use of traditional metaphors and analogies for a fourth reason. The pace of technological change is not only rapid, it is, more importantly, highly uneven. Whereas we may have a relatively coherent and congruent set of assumptions about the way the physical world works, we do not have that common basis in the fabricated world of the computer, in what we might call the electroverse." See C.E.A. Karnow, Future Codes: Essays in Advances Computer Technology and the Law, Artech House, Norwood, Massachusetts, 1997. 55 It has been argued that complete harmonization of the law pertaining to cyberspace may be difficult to achieve because of the lack of an emergring consensus on some key issues and areas of the law such as formality requirements, joint liability of intermediaries and the law of conflicts; see C. Reed, Internet Contracting, Computers and Law, February/March 1999, p. 36. It is suggested that these problems are not insurmountable and that, as an appreciation of the importance of having uniform laws apply to transactions in cyberspace develops, countries will come under increasing pressure to resolve these differences in their laws. It is noteworthy that we are already starting to see some strains of convergence in hitherto controversial areas of the law, such as the effect of an offer and acceptance in the formation of contracts, copyright issues in relation to hyper-text linking and framing and the liabilities of network service providers. 56 Judges and other adjudication bodies may, of course, adopt differing perceptions of what this "universal" law is, and therein lies some potential for the law to develop in divergent paths in different jurisdictions. In order to overcome this difficulty, it is suggested that the practice of courts when interpreting the provisions in multilateral treaties or conventions be followed. In this regard, it should be noted that the principle of good faith imposes on every court that is hearing a dispute involving the provisions of a multilateral treaty the obligation to harmonize its decision with those of other courts and, where there are conflicting precedents, to harmonize the precedents.

s� For a detailed analysis of this approach and a comparative analysis of the two approaches, see Andrew D. Murray, Douglas W. Vick and Scott Wortley, Back to Basics: First Principles in the Law of Electronic Transactions, Intellectual Property & Information Technology Law, Vol. 5, Issue 3, June 2000, p. 2. 51 The full text of the Model Law is available at: <

60 The full text of this Bill can be viewed at: ,http://www.ptiblications.parliaiiietit.uk/pa/pabills.litm,,. �� See the Model Law, supra, footnote 58, Article 5. 62 See, in particular, ibid., Articles 6, 7, 11, 12, 13, 14 and 15. �3 Infomiation obtained from UNCrTRnt's Website at: «http://www.uncitral.org/en-index.htm». 6^ ASEAN Counfries AAree on e-Comrnerce Lrrws, Computer World, Vol. 6, No. 43, 25-31 August 2000, p. 11. 1 .

65 The American Law Institute (All) and the National Conference of Commissioners on Uniform State Laws (NCCUSL), the two organizations jointly responsible for drafting, updating, and promulgating the Uniform Commercial Code (Ucc), in August 1999 announced the formation of new Drafting Committee to continue the effort to revise Articles 2 (Sales) and 2A (Leases) of the Ucc. The Ucc has achieved substantial uniformity of commercial law throughout the United States through enactment, in whole or in part, in all fifty states as well as in the District of Columbia, the Virgin Islands, and Puerto Rico. The present revision of Articles 2 and 2A is part of an ongoing undertaking by the Au and N(�(:usL to modernize the Ucc, originally promulgated in 1952, and keep it responsive to contemporary commercial realities; see the All and NccusL joint press release dated 18 August 1999, available at: <The Legal Acceptance of Electronic Documents, Writings, Signatures, and Notices in International Transportation Gortverttions: A Challenge in the Age of Global Electronic Commerce, 13 Journal of International Law & Business 1 17, 1992.

7(l See, generally, Lawrence Lessig, Code and Other Laws ,>{Cyberspaœ, 1999. " See, generally, Jessica Litman, The Dxs Wars: Trademarks and the Internet Domain Name System, 4 The Journal of Small and Emerging Business Law 149. 72 See, generally, Olivia Maria Baratta and Dana L. Hanaman, A Globalllpdate on the Donrain Name System and the l,au�: Alternative Dispute Resolution for Increasing Internet Competitiun-Oh, the Times T7iey Are a-Changin 8 Tulane Journal of International and Comparative Law 325. '3 See, generally, Alan Heinrich, Karl Manheim and David J. Steele, At the Crossroads of Lay and Technology, 33 Loyola of Los Angeles Law Review 1035. '^ See, generally, William D. Wiese, Death of a Myth: The Patenting of Internet Business Models After State Street Bank, 4 Marquette Intellectual Property Law Review 17. 75 See Michael North, The U.S. Expansion of Patentable Subject Matter: Creating a Competitive Advantage for Foreign Multinational Companies? 18 Boston University International Law Journal 111, 2000; and Christopher S. Cantzler, State Street: Leading tlae Way to Consistency for Hztelltability of Computer Software, 71 Colorado Law Review 423, 2000.

�h The Economist, London, 31 May 2003, p. 76. 77 According to Chicf Justice Yong Pung How, «e@dr» is "[a] first of its kind in the region and the world for a judiciary" and "[iJn addition, our partners, namely the Singapore Mediation Centre and the Singapore International Arbitration Centre will offer services in mediation and arbitration, respectively, for such disputes"; see Julia Ng, Singapore Judiciary Lauruhes E-Commerce Dispute Resolution Flub, 16 September 2000; available at: ,,Iittp://www.channelnewsasia.com/articles/2000/09/16/singaporenewsl6926.htm>>. The «e@dr» service may be accessed at «Imp:/ /www.c-adr.gov.sg». �s In some cases, the latter course of action may, however, defeat the purpose of enacting legislation in the first place.

79 Some commentators have argued that the United States' Digital Millennium Copyright Act is one such example; see Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti- Circumvention Regulations Need to be Revised, 14 Berkeley Technology Law Journal 519, 1999. e° Heinrich et al., sitpra, footnote 73, at 1045. Rr Id. 12 In the Dvu Dt'Cas case, for example, the Court issued a preliminary injunction prohibiting the posting of the DeCss code anywhere on the Internet, even as it recognized the likelihood that its order would be disobeyed. In fact, the DeCss code has recently been embedded within a domain names system record and continues to spread across the Internet, despite the Court's injunction. See also William Sloan Coats, Vickie L. Feeman,John G. Given and Heather D. Rafter, Legal and Business Issue in the Diqital Distribution of Music: Streaming into the Future: Music and Video O,J!Ù1e, 20 Loyola of Los Angeles Entertainment Law Journal 285, 2000. 83 A good overview of the problems that exist is provided in Frank J. Cilluffo, Paul Byron Pattak and George Charles Salmoiraghi, Bad Guys and Guod Stuff When and Miere Will the Cyber Threats Converge? 12 DePaul Business Law Journal 131, 1999/2000.

"^ See 7? Carnivore FOIA Litigation, Electronic Privacy Information Center, 14 February 2001 at: <Public Workshop on Online Pro_filirrg, Testimony of the Centerfor Democracy and 1 ecltrtology before the Federal Trade Commission, 30 November 1999; available at: «http://www.cdt.org/testimony/ftc/ 991130mulligan.shtml». no Doubleclick has 120 million consumer profiles; see: «http://www.doubleclick.net/us/corporate/presskit/ press-rcleases.asp?asp-object_1=&press°/,SFrelease°/,SFid=2506». Engage has 88 million consumer profiles; see: ��http:www.engage.com/press room/1001g2.cfm». 24/7 Media collects information from over 4,600 Websites; see: ,http://www. 247111 edia. coin /publishers/web - adv.htn-d,,. R7 Doubleclick mentions this in its press release: Doubledick Delivers On Q1 Expectations, Launches Research Business, And Expanda Email Capabilities; available at: «http://www.doubleclick.net/us/corporate/presskit/ press-rdeases.asp ?asp - obj ect_1 =&press%5Frelease%5Fid=25(6». "H C. Macavinta, Primacy Fears Raised by DoubIeClick Database Plans, 25 January 2000; available at: «http://news.cnet.com/news/0-1005-200-1531929.htntl?tag=rltdnws».

<'J N. Wingfield, Amazon Clarifies (:customer Info Policy, ZDNet News, 1 September 2000; available at: <(http: //wvrw. zdnet.com/adii ii/stori es/news/0,4586,2622866,00. li ttnl)). 90 J. Guidera and F. Byrt, Toysmart Customer Data Still ill Limbo, ZDNet News, 18 August 2000. 91 Christian Science Monitor, Boston, 14 May 2002, p. 3. 1)2 In the European Union, for instance, governments have moved aggressively to regulate the use of personal data. In the United States, on the other hand, the government has largely refrained from such regulation. instead allowing companies and associations to regulate themselves, save for a small number of narrowly drawn regulations targeting specific industries. These divergent responses can best be explained by different cultural mores and the different legal approaches to privacy in general. The EU's aggressive regulation of the use of personal data originating in its fifteen Member countries is embodied in its Directive on the Privacy of Personal Data 95/46/EC, which took effect on 25 October 1998. The Directive embodies the principle that privacy is a fundamental human right. It also serves the purpose of equalizing the level of data privacy protection guaranteed on each EU Member country so as to decrease transaction costs for entities that operate across national borders. The Directive provides a high level of protection for the privacy of personal data, and it extends that protection beyond the EU by prohibiting the transfer ofdata to third countries unless those countries can guarantee a vaguely defined "adequate" level of data protection. See also Julia M. Fromholz, The European Union Data Privacy Directive, 15 Berkeley Technology Law Journal 461, 2000.

v; See, for example, initiatives such as the Japan-Singapore Privacy Working Group.

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17. United States Department of Commerce, International Trade Administration: «http://infoserv2.ita.doc.gov/ticwebsite/apweb.nsf/e0557129ba86fcb9852566d4006a454a/ 11e461a430d2c9b1852569e00069797b!Open Document»

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21. The World Bank, 2002 World Development Indicators: «http://www.worldbank.org/data/wdi2002/pdfs/table%,205-1.pdf»

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