Jane K. Winn, Emerging Issues in Electronic Contracting, Technical Standards and Law Reform, 7 Uniform L. Rev. 699 (2002), https://digitalcommons.law.uw.edu/faculty-articles/155
Uniform Law Review
e-commerce, global markets
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.