Lee A. Bygrave (red.) YULEX 2002 - Universitetet i Oslo

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46 Susan Schiavetta
content. In respect of the accompanying enforcement measures, these tend to
be weak, and consequently international organisations habitually fail to bring
dissenting Member States back into line. In contrast, the WTO is an organisation
with teeth; the process of juridification of trade makes the WTO particularly
powerful. Hence, the WTO is arguably in the best position to influence
national governments, especially regarding legal regulation of ecommerce.
The contractual characteristic of the WTO Agreements means
that their provisions can be enforced against Member States. In the event that
a Member State fails to abide by the WTO “code”, two methods of redress
may come into play: the Dispute Settlement Mechanism (DSM) and the
Trade Policy Review Mechanism (TPRM).
Similar to the measures in Article 226 of the Treaty establishing the European
Communities (EC Treaty), the DSM allows a Member State to complain
if it feels that another has violated any of the WTO rules. When this procedure
is activated, the parties must agree to adhere to the judgments of the
arbitrating panel. After a decision has been made, the “disobedient” Member
State must move quickly to rectify its position, otherwise it can be subject to
compensatory measures, sizeable penalties and destructive trade sanctions. 8
While the DSM is a conflict resolution procedure, the TRPM is more of a
surveillance system, which involves examining the individual trade policies of
the Member States. 9 Again, this system can be compared to the review processes
of the European Commission, which analyses the implementation of
legislation by Member States with a view to eliminating non-compliance.
2.4 The Legal Regulation of E-commerce
E-commerce is basically an activity covering all forms of the purchase and
sale of goods and services using electronic means, such as the Internet. Within
this lie two main forms of e-commerce: business to business and business to
consumer. Undoubtedly, this electronic method of trading has added a new
dimension to the trading arena, stimulating opportunities as well as challenges.
Regarding the latter, tools such as the Internet produce new ways for
old crimes to be committed, and so legal regulation must ensure that issues
like fraud are also covered in cyberspace. Further, since the Internet has no
regard for national boundaries and facilitates extensive cross-border transacting,
conflicts of law are bound to arise under domestic legislation. Hence,
international co-ordination of regulatory policy is necessary. While rules
8
See further Qureshi, supra n 4, chapt 5.
9
Ibid, chapt 6.