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中国电子商务法草案公布 New Model Law for Developing Countries

《中华人民共和国电子商务法(草案)》(简称草案)于2016年12月25日提交全国人大常委会审议,参与草案起草工作的北京师范大学互联网法律与政策研究中心主任薛虹于12月23日向中新社记者表示,该草案是世界首部综合性的电子商务法案,有望引领此领域的立法潮流。

联合国于1996年12月16日出台首部《电子商务示范法》(UNCITRAL Model Law on Electronic Commerce),世界电子商务立法迎来“破冰”。“该法堪称电子商务立法的‘1.0版本’”,薛虹说。此后,欧美主要经济体都照此制定了类似法律,可以称为“2.0版本”。时隔20年,世界电子商务的发展与之前已经不能同日而语,中国在此领域的发展也已经达到全球前列高度。“中国根据新的变化和要求进行立法,有望成为世界电子商务立法的‘3.0版本’,起到示范作用”,薛虹说。

她认为,从国际视角来看,草案主要有三方面特点。一是全面吸收借鉴了全球电子商务立法的经验,并体现了中国立法的“原创智慧”。如草案赋予了第三方电子商务平台法律地位,并创造性地规范与监管电子商务平台的信用管理机制、在跨境电子商务综合服务者方面设立相关规定。“这都是世界现有法律没有的,体现了中国立法的原创性”,薛虹说。

二是在草案中,中方明确了愿意参与构建相关国际法律的态度。如草案第七十三条规定,国家推动建立与不同国家、地区间跨境电子商务的交流合作,参与电子商务国际规则的制定。薛虹说,这从立法领域体现出中国的开放态度,中国今后在电子商务领域将更深度融入世界。

三是目前看,中国电子商务法草案是世界此领域首部综合性立法,对于其他国家尤其是发展中国家的立法起到积极的示范作用。薛虹表示,经过20年的发展,世界上主流国家对于电子商务的规范还停留在一些分门别类的条款中,如有的单独对电子交易进行规范、有的单独对交易平台进行规范。“而中国在立法之初,就将与电子商务有关的领域都考虑进去,是立法体例的创新。”

草案对与电子商务有关的领域都作出了规范,如电子支付、快递物流等内容都被纳入其中,并在争议解决、市场秩序与公平竞争、知识产权保护、个人信息保护等方面作出了相关规定。

薛虹说,此次在立法过程中,起草组充分听取各方意见,先后召开两次国际研讨会,并将草案翻译成英文,邀请联合国国际贸易法委员会和美国、欧盟、日本、新加坡等国专家进行研讨,在此基础上进行丰富和修改。

“草案英文版公布后在一些国家引起了强烈反响”,薛虹说,许多发展中国家的专家看过后表示,现在要学习的不再是20年前的联合国示范法,而是要学习中国的做法。“这也是中国对于全球电子商务立法的主要贡献。”

中新社北京12月23日电 (记者 梁晓辉) http://www.chinanews.com/gn/2016/12-23/8102740.shtml

网易财经 http://money.163.com/16/1223/11/C8VGTTTL00254TI5.html#from=keyscan

东方头条 http://mini.eastday.com/a/161223114952654-2.html

法制网 http://www.legaldaily.com.cn/index/content/2016-12/27/content_6932482.htm?node=20908

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IIPL Contributes to the first UN Cross-Border Electronic Trade Treaty

Prof. Xue, as the invited legal expert, took part in the both the Legal and Technical Working Group meeting and the 3rd meeting of the Intergovernmental Steering Group on Cross-border Paperless Trade Facilitation (IISG on the 21-24 March 2017 in Bangkok, Thailand. Significant progress was made on a draft road map for implementation of the Framework Agreement on Facilitation of Cross Border Paperless Trade in Asia and the Pacific. Prof. Xue gave a presentation on the international laws that are essential or complementary to the Framework Agreement at the Working Group meeting and her draft on implementation of Article 10 of the Framework Agreement was officially accepted as the supporting document for implementing the Roadmap at the IISG meeting. Senior officials from 26 countries in the Asia-Pacific region participated in the Steering Group’s deliberations.

The Steering Group made significant improvement on a draft roadmap which outlines actions for successful implementation of the treaty. The Steering Group also agreed on a signing ceremony of the treaty to be held in August 2017. The text of the new treaty was adopted in May 2016 and opened for signature in New York later that year.

This treaty is the first regional agreement of its kind to specifically focus on developing digital trade facilitation measures to achieve paperless trade across borders. Open to all 53 member States of ESCAP, the new treaty will support the WTO Trade Facilitation Agreement, which entered into force in February 2017. It is also expected to help harmonize the growing number of bilateral and subregional paperless trade initiatives in the region. Prof. Xue’s paper “The Newest UN Treaty to Facilitate Cross-border Paperless Trade in Asia and the Pacific: An Insight Preview” dedicated to the agreement has been formally accepted for publication on the prestigious  SSCI Journal of World Trade and will be availed online and physically in December 2017 in Geneva.

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IIPL & CIS Joint Research Meeting on Pervasive Technologies of Mobile Internet

IIPL has been working diligently with its research partner Indian Center of Internet and Society (CIS) on the Issues in Mobile Internet and Access to Knowledge. The joint project has been going for two years. A couple of research exchanges, in-person meetings or virtual calls, have been arranged. Both parties have been working on four chapters on copyright, licensing, patent and anti-trust related issues on the Mobile Internet respectively in Chinese and Indian legal environment. A comprehensive review meeting was held at end of February 2017 in Macau, with the support of local research institutions. At the review meeting, both Chinese and Indian researchers of each chapter made the in-depth presentation on research methodology, progress and outlines of the contents. Prof. Xue presented, on behalf of the Chinese team, on all four chapters that have been working on from the Chinese side. 7 India young researchers presented respectively the chapters from the Indian side. International experts from Canada ICTSD and USA were invited to review the research and highly acknowledged the quality and value of the outputs.

Four pairs of the chapters from both countries showcase the very interesting landscape and potential of mobile Internet in two biggest Internet communities in the world. Both opportunities and caveats emerge from these research outputs. The upcoming comparative studies will be even more inspiring. The research is an epic one in both countries as well as in the whole world. Its final product will be an importance contribution to the research on the Internet 2.0 that is community-based, social-media centered and ubiquitous on wireless network. The two partners is going to present its research achievements to the regional community at the APrIGF at the end of July 2017.

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International Moot Court held at the Law School

The LLM student of BNU Law School, international students of LLM in Chinese and international visiting students participated in the international Moot Court on copyright disputes in universities at the end of 2016. The Moot court was organized by Prof. Xue during her teaching of Intellectual Property Law to both groups of the students. The case for the Moot Court was adapted from the real case between a US publisher and an Indian university.  Prof. Xue redesigned and rewrote the facts of the case and made it a case between a group of western publishers and BNU. The case that hypothetically happened on BNU campus triggered great interests from both Chinese and international students, both of whom made comprehensive preparation for the Moot Court, including collecting evidence, compiling case materials and deposition of witnesses.  At the Moot court session, both parties made persuasive arguments and in-depth legal analysis, which showed that they were able to utilize the knowledge they learned during the course to practices. The moot court was conducted in English and 12 international students from Italy, Iran, Tanzania, France and Spain prevailed in the legal debate. The grant jury comprising of the representatives from both group was hardly reach the verdict unanimously and had to be subject to the final ruling of Prof. Xue. It’s an interesting and successful experiment for all the participants.   

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Stewardship of IANA Functions Successfully Transferred to Global Internet Community

On 1 October 2016, the contract between the Internet Corporation for Assigned Names and Numbers (ICANN) and the United States Department of Commerce National Telecommunications and Information Administration (NTIA), to perform the Internet Assigned Numbers Authority (IANA) functions, has officially expired. This historic moment marks the transition of the coordination and management of the Internet’s unique identifiers to the private-sector, a process that has been committed to and underway since 1998.

Prof. Xue, as a long-time active member on the Multi-stakeholder Steering Group of Asia Pacific Regional IGF (APrIGF) called for US government to timely  complete the IANA oversight transition as scheduled at APrIGF 2016 in Taipei. As a member of the Draft Committee, Prof. Xue suggested use the strong and unequivocal wording to support the global multi-stake process for the transition.

Before the IANA Functions contract ended on October 1st, 2016, some in the US Congress had challenged the validity of the proposal to transfer (or “transition”) the oversight role currently exercised by the US Administration, to a multi-stakeholder Internet community equipped with accountability mechanisms.

Prof. Xue, along with the other Internet leaders, signed on a letter sent to the President of the United States of America on September 14, 2016. Similar letters were sent to the Speaker and Leadership of the House of Representatives, as well as to the President pro tempore and Leadership of the Senate. In these letters, the signatories state: “It is our sincere hope that the Administration will now implement, and that the Congress of the United States of America will not impede the transition of oversight of the IANA Functions.”

Below is the full text of the letter.

List of recipients of our letters:
- President Barack Obama,
- Ms. Penny Pritzker, Secretary of Commerce
- Hon. Ryan Paul, Speaker of the House of Representatives
- Hon. Harry Reid, Democratic Leader
- Hon. Nancy Pelosi, Minority Leader
- Hon. Orrin Hatch, President pro tempore of the Senate
- Hon. Mitch McConnell, Majority Leader

Copies of these letters were sent to:
- Dr. Larry Strickling, Assistant Secretary of Commerce, Administrator of NTIA
- Ms. Fiona Alexander, NTIA
- Dr. Steve Crocker, Chair, and Members of the ICANN Board
- Members of the ICG

Copies of the letters were communicated by separate emails to the following media:
- TheHill.com
- RollCall.com
- BBC North America
- Washington Internet Daily
- Bloombert BNA
- The Guardian, London

* * *

12th of September, 2016
To:
The President of the United States of America
(…)

Dear Mr. President:

As the first truly universal infrastructure in human history, the Internet has allowed huge progress to be achieved in business, legislation, science, public health, agriculture, industry, education and communications, at the same time as it has facilitated the daily lives of ordinary citizens all over the world.

Because of the seminal contribution of the United States of America in creating the Internet and carrying forward so many of its subsequent developments, your country has earned the deep and lasting gratitude of billions of people. In fact, today’s younger generations in so many countries cannot even imagine life without the benefits of ubiquitous connectivity, quick and free access to knowledge, as well as the facilitation of social intercourse.

As individuals deeply engaged in, and committed to improving the integrity, stability and uses of the Internet, we believe that now is an appropriate time to confirm the multi-stakeholder model of the Internet, in a way that would benefit both the United States and the rest of the world. In this respect, we note that the United States have consistently considered that the further development of the Internet would best be served by a global multi-stakeholder model:

1. At the inception of the Internet Corporation for Assigned Names and Numbers (ICANN) in September 1998, the U.S. Government and Internet stakeholders envisioned that the U.S. oversight of the Internet Assigned Numbers Authority functions (“IANA functions”) would be temporary. Also in 1998, the U.S. Department of Commerce issued a Statement of Policy that the U.S. Government “is committed to a transition that will allow the private sector to take leadership for DNS (Domain Name System) management.”

2. In December 2012, the House of Representatives and the Senate jointly stated: “It is the sense of Congress that the Secretary of State, in consultation with the Secretary of Commerce, should continue working to implement the position of the United States on Internet governance that clearly articulates the consistent and unequivocal policy of the United States to promote a global Internet free from government control and preserve and advance the successful multistakeholder model that governs the Internet today.” (H.Con.Res.127; S.Con.Res.50).

3. In March 2014, the National Telecommunication and Information Agency (NTIA) announced its intention to transition key Internet domain name functions to the global multistakeholder community. As the first step, NTIA asked ICANN to convene global stakeholders to develop a proposal to transition the current oversight role played by NTIA in the coordination of the Internet’s domain name system, and set out four criteria for such a transition to merit consideration. As requested, ICANN convened the IANA Stewardship Transition Coordination Group (ICG) which started work in December 2014.

4. In March 2016 the ICG, with the input of the Internet community, submitted its Proposal to NTIA. The NTIA certified that the Proposal met the four criteria (June 2016), approved it (August 2016), and announced its intention to let the IANA Functions contract expire on October 1st, 2016.

It is our belief and indeed our conviction that the transition of oversight of the IANA Functions, from an agency of the United States Government to a multi-stakeholder system equipped with detailed checks and balances, will safeguard the security, openness and efficiency of the Internet, while helping to meet some of the challenges facing humanity and the world in which we live.

In bringing this to your esteemed attention, we are inspired by the fact that the foundation of the United States of America was, in itself, a major innovation of its time: it set out a model of government predicated on principles, a judiciary unswerved by political partisanship, and an economic model in which wealth and success would be earned by initiative and enterprise rather than by inheritance alone. Implementing those lofty principles required open information, as well as the awareness and growing participation of citizens. For the Internet today, the challenges are not very different.

It is our sincere hope that the Administration will now implement, and that the Congress of the United States of America will not impede the transition of oversight of the IANA Functions.

We are addressing similar letters to the Honorable Speaker of the House of Representatives, and to the Honorable President pro tempore of the Senate.

Most respectfully,
On behalf of the signatories listed below:
Jean-Jacques Subrenat
(Ambassador, ret.)

SIGNATORIES:

The Hon. Carl Bildt (Sweden)
Chair, Global Commission on Internet Governance; former Prime Minister & Foreign Minister

Dr. Vinton G. Cerf (United States)
former Chair of the Board of ICANN, Internet Pioneer

Ms. Avri Doria (United States)
Principal Researcher, Technicalities

Mr. Roberto Gaetano (Italy)
Chair, the Public Interest Registry

Prof. Dr. MURAI Jun 村井 純 (Japan)
Dean & Professor, Environment and Information Studies, Keio University
Founder of Junet & WideProject

Dr. Nii Narku Quaynor (Ghana)
Chairman, Ghana Dot Com Ltd.; founding Chairman of AfriNIC

Ms. Njeri Rionge (Kenya)
Founder & CEO, Ignite Consult. & Investment; co-founder & Director, Wananchi Online Ltd.

The Hon. Ms. Marietje Schaake (Netherlands)
Founder, Intergroup on the Digital Agenda for Europe; Member of the European Parliament

Mr. Jean-Jacques Subrenat (France)
Ambassador (ret.); Former member, ICANN Board; Member of the ICG (2014~)

Dr. Prof. XUE Hong 薛虹 (China)
Founding Director, Institute for Internet Policy & Law, Beijing Normal Univ. 北京师范大学

Dr. Prof. YOKOZAWA Makoto 横澤 誠 (Japan)
Professor, Kyoto University; Vice Chair of the Internet Economy WG, Keidanren

(Views expressed in this letter are those of the signatories, and do not purport to represent the positions of entities with which they may be associated.)

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