世界经济论坛-在线消费者保护和电子商务的全球治理（英文）.docx

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1、ContentsIntroduction: Why does this matter?4Understanding the landscape6Regulatory instruments in play8Cross-border solutions: Whafs been done to date11International (soft law*11The WTO option12The regional deal option15Next steps17Annex 1: Online consumer protection regulatory examples18Acknowledge

2、ments21Endnotes22an opportunity to build a soft consensus on common approaches - a method used in other policy fields, too, such as the International Competition Networks approach to competition law and authorities.Soft law may be a step in the right direction. It has the potential to achieve functi

3、onal-equivalent regulatory convergence on consumer protection principles. A non-binding approach may also allow for the description of detailed principles, subsequently implemented by consumer protection agencies, knit together as a community of advocates for consumer protection. A downside is that

4、soft law may have limited effects in addressing consumer distrust in poor regulatory environments already in existence -particularly those where domestic reform is unlikely.The WTO optionMany trade experts argue that WTO rules make no distinction between the different means (whether physical or onli

5、ne) through which goods and services are traded.41 Various WTO dispute settlement reports have confirmed that the market-access commitments and non-discrimination obligations found in the General Agreement on Trade in Services (GATS) extend to the electronic supply of services.42Nonetheless, WTO mem

6、bers initiated a work programme as far back as September 1998 to better understand the implications of WTO rules on emerging online modes of cross-border trade.43 Discussions in the work programme over the past two decades, however, have been of limited relevance to online consumer protection. For t

7、he most part, the focus has been on trade-liberalizing measures (e.g. market-access commitments, non-discrimination etc.) and related classification issues, rather than on regulatory tools to build consumer trust in e-commerce. To some extent, this is not surprising given the nature of the WTO - an

8、organization that promotes international trade liberalization rather than setting standards or regulatory harmonization on trade-related matters.The increasing prominence of digital trade led to developments in two parallel discussion tracks at the organizations 11th Ministerial Conference (MC11) in

9、 December 2017. At the multilateral level, the work programme was rolled over with a focus on existing WTO rules, while 70 WTO members adopted a Joint Statement on Electronic Commerce, agreeing to undertake exploratory work towards future negotiations.44Within this “plurilateral” process, several WT

10、O members put forward proposals that touched on online consumer protection, as summarized in Table 1. In January 2019, 76 WTO members, responsible for over 90% of global trade, confirmed their intention to begin negotiations on the trade-related aspects of e-commerce.Table 2: WTO proposals on online

11、 consumer protection (2018)WTO member (s)Online consumer protectionAgency cooperationPersonal information protectionThe Separate Customs Territory of Taiwan, Penghu, Kinmen and MatsuRussianFederationProtect online consumers, rights at a level no less than provided in offline commerce; recognize impo

12、rtant online consumer rights in e-commerce; ensure security of cross-border e-commerce; encourage the private sector to engage in good business practice; define measures that can counter cross-border violations of consumer rights and safety; create a digital platform to share information on unsafe o

13、nline goods and servicesSet basic principles for cooperation and information exchange on cross-border trade for competent authorities and develop unified approaches for cooperation and mutual aid to prevent dishonest activity in e-commerceWTO members to commit to not adopting or applying measures th

14、at hamper the cross-border transmission of information, unless under exceptionalcircumstances; WTO members to agree to a set of principles or guidelines that indicate when exceptions to information transmission may be legitimate and how to apply such regulatory measures on a transparent and non-disc

15、riminatory basisStandards for personal data transmission in the supply of payment services; conditions for personal data treatment, including storage, confidentiality and securityEuropean Union Adopt or maintain measures that contribute to consumer trust; adopt or maintain measures that protect cons

16、umers against unsolicited commercial electronic messages (i.e, “spam”) and agree to a set of broad technology-neutral obligations including consent, prevention, identification and recourseRecognize the importance of cooperation between national consumer protection agencies and other relevant bodiesN

17、ew ZealandWTO members commit to minimum legal frameworks to prevent the use of misleading or deceptive practices online; put in places measures to address spamWTO members commit to establishing or maintaining a legal framework to protect personal information of electronic commerce usersArgentina,Neg

18、otiate to address regulatoryAffirm WTO members5 right toColombia & Costa Ricaissuesregulate to ensure the protection of individual privacy, security and confidentiality of informationBrazilWTO members to protect end users against unsolicited direct marketing communications; ensure direct marketing,

19、where allowed, is clearly identifiable as such; common understanding on return periods; a list of objectives WTO members should pursue or maintain to enhance consumer trust, such as measures that prohibit charging consumers for services not requested or for a period in time not authorizedWTO members

20、 recognize WTO members to adopt or maintainthe importance of cooperation between respective national consumer protection agencies or other relevant bodiesa legal framework that provides for the protection of persona data of individuals, taking into account the principles and guidelines of relevant i

21、nternational bodies; encourage the development of mechanisms to promote compatibility between different privacy regimes; outline a set of criteria where the international transfer of data is allowable; WTO members to ensure online platforms are responsible for personal data stored and managedSingapo

22、reAdopt measures/laws to protect online consumers from fraudulent and deceptive commercial activities; adopt and maintain measures to address spamPromote international cooperation between consumer protection agenciesAdapt or maintain measures that offer protection for personal informationSource: Aut

23、hors1 analysis of proposals made in the e - commerce joint statement discussions in 2018.Although the WTO proposals to date converge on the importance of consumer-related issues, they are vague about the substantive content of the “set of principles” or minimum legal frameworks that ought to be enco

24、uraged or required by WTO law. However, the early stages of discussions may offer a partial explanation.Non-governmental organizations, such as Consumers International, have also outlined a “checklist of elements critical for any international e-commerce deal. Under the banner of Informed choice, co

25、nsumers should have a clear and accurate presentation of information, transparency on subscription service payments and clarity on the location of retailers. For increased access and inclusion, the needs of vulnerable and disabled consumers should be considered, with responsible marketing warnings a

26、nd age verification checks also emphasized. Effective protection should be given in the manner of other forms of commerce, with consumers able to explicitly agree to a purchase and receive a receipt. Consumers should have access to fair and effective dispute resolutions if something goes wrong. Prod

27、uct safety11 should be pursued with clear warnings and information on safe use; data protection should be of a high standard in both substantive and procedural national laws. International cooperation should be encouraged, including through the UN, ICPEN, OECD and regional bodies, and any e-commerce

28、 negotiating process should be transparent and should involve multistakeholder dialogue.45Questions remain as to whether the WTO is the most appropriate forum for adopting such international e-commerce agreements and for regulating online consumer protections. On the one hand, the WTO may seem bette

29、r placed to tackle this issue than other international or regional governance structures: It is the backbone for international trade governance; it benefits from a quasi-universal membership; it benefits from theflexibility of a plurilateral approach to rule-making when needed;and, in theory at leas

30、t, it has a relatively sophisticated and effective dispute settlement system - notwithstanding the ongoing Appellate Body crisis.46 In policy terms, divergence in domestic consumer laws could be a non-tariff barrier to cross-border online transactions, and hence qualify as a trade-related concern fo

31、r the WTO.On the other hand, the WTO presently has limited experience in promoting regulatory convergence on trade-related matters. Onlythe Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) has unquestionably moved in the direction of positive integration, by presc

32、ribing the minimum standards of intellectual property protection in both substantive and procedural terms-building on preexisting World Intellectual Property Organization (WIPO) conventions. WTO rules on technical barriers to trade and on sanitary and phytosanitary measures encourage harmonization o

33、f relevant international standards developed by other competent international organizations47or the mutual recognition of domestic regulations.48These provisions are qualified, however, and make it the choice of each WTO member to regulate (or not) at the level of protection it deems appropriate.Som

34、e progress towards standard-setting was arguably made, however, through the UWTO Telecommunications Reference Paper on Regulatory Principles”. Adopted in 1996, the document set out common principles for a regulatory framework that were considered important as the telecommunications sector transition

35、ed from dominance by state-owned monopolies to one where competition is prevalent.49The aim was to minimize divergence by stipulating the vital elements for an effective regulatory framework on telecommunications services. Some 82 members have integrated the reference paper into their respective GAT

36、S Schedules of Commitments to make its principles legally binding.WTO members engaging in plurilateral e-commerce negotiations could consider this approach, allowing them to identify the most effective regulatory practices for online consumer protection. A common set of detailed minimum internationa

37、l standards for implementation by the participating countries could be outlined. Doing so could help boost consumer confidence in e-commerce in parallel with easing the costs that hold back small businesses selling online in the first place - encouraging a virtuous circle between demand and supply.T

38、he approach does have some disadvantages. First, as with the Telecommunications Reference Paper, only a limited number of WTO members might commit to be bound by the minimum standards in online consumer protection. Governments that are already digital-sawy may be the only ones to participate in the

39、process, making the regulatory improvements brought by WTO bindings relatively limited. Second, a reference paper approach could set a high bar, particularly for developing countries that may not yet have the resources to adopt and implement online consumer protection laws. WTO negotiations could re

40、medythis by offering technical assistance to support lawmaking and implementation. Third, drafting of minimum online consumer protection standards cannot provide a definitive solution to the problem of regulatory friction and the subsequent consumer mistrust in e-commerce, since it will not lead to

41、harmonization. It would still be possible for some WTO members to impose higher online consumer protection standards, therefore allowing some degree of regulatory diversity to remain.Additional questions exist in regard to enforcement. The WTO dispute-settlement system is state-to-state.50 If a WTO

42、member violated its regulatory commitment to online consumer protection, affected individuals in another country would need to rely on his or her home state to bring a challenge.The regional deal optionAn increasing number of regional or preferential trade agreements (PTAs) cover cross-border e-comm

43、erce.51 According to research conducted by the WTO Secretariat, of the 275 PT As that were in force and notified to the WTO as of May 2017, 75 contain provisions specific to e-commerce. Of these, 65% include online consumer protection provisions,52 about 58% contain provisions on personal informatio

44、n protection and 28% cover unsolicited commercial electronic messages.53In most cases, the PTA5s dispute-settlement mechanism would apply to the e-commerce chapter, with only ten agreements excluding some or all relevant provisions.54 However, as in the case of the WTO, these are traditional state-t

45、o-state dispute-settlement mechanisms, with only three PT As providing for alternative mechanisms to resolve cross-border e-commerce disputes.55The legal strength and enforceability of these provisions varies significantly. On the stronger side of the spectrum are provisions that are clearly mandato

46、ry and enforceable. An example is the PT A provisions dealing with the adoption ofpersonal information protection measures,56 with about half requiring each party to adopt or maintain personal information protection laws and often including a reference to international standards and the criteria of

47、the relevant international bodies (albeit with qualified language: should take into account55).57At the weaker end of the spectrum are provisions framed in language seeking the most effective methodologies that may be difficult to enforce in practice. Online consumer protection measures,58 in most c

48、ases, fall short of imposing a mandatory obligation.59 The same applies to PT As calling for e-consumer protection that is at least equivalent to that provided to consumers in other forms of commerce.60 Similarly, relatively weak legal terms are used for the prevention of unsolicited commercial elec

49、tronic messages,61 with few agreements incorporating a binding commitment.62In some respects, PT As present prime laboratories for developing new rules among groups of “like-minded” countries on trade-related issues, particularly on topics that have stalled atthe WTO.63 However, consumer-related provisions in PTAsarguably have had limited legal significance to date, despite being an important step forward from a policy or poli