In its comments on the draft revised Law on Electronic Transactions (expected to be reviewed and approved by the National Assembly at its 5th session, 15th term), the Vietnam Chamber of Commerce and Industry (VCCI) suggested that the drafting agency should consider adding several criteria to facilitate electronic transactions and establish a solid legal framework for building a more developed digital economy in Vietnam.
Having a legal framework for electronic transactions will create an important foundation for promoting the national digital transformation process.
This will help overcome the limitations and shortcomings of the current law, ensuring safety for businesses and citizens in electronic transactions, as well as supporting the development of electronic transactions and creating an important foundation to promote the national digital transformation process.
Ensuring transparency in electronic transactions.
The revised Law on Electronic Transactions is considered a very important draft law, especially in the current period given the inevitable trend of conducting transactions electronically, which will become dominant in the near future.
According to VCCI, Article 25.1 of the Draft stipulates that a secure electronic signature can replace a personal signature. However, the Draft does not specify any criteria for determining whether an electronic signature is considered secure. Therefore, it is suggested that the drafting agency add a provision on this matter; in other words, the provision in Article 22 of the 2005 Law on Electronic Transactions should be reconsidered.
Analyzing this issue in detail, VCCI argues that Article 28.1.d of the Draft stipulates that one of the conditions for recognizing foreign electronic signatures is that the users must be foreign organizations or individuals; or Vietnamese organizations or individuals who need to conduct electronic transactions with foreign partners but whose electronic signature certificates from domestic service providers are not recognized in that country.
However, according to VCCI, this regulation is not entirely reasonable because it is difficult for Vietnamese organizations and individuals to know whether domestic service providers have been recognized in the partner country. This regulation will create difficulties for Vietnamese businesses when trading with foreign partners.
Furthermore, Article 28 of the Draft also stipulates the use and recognition of foreign electronic signatures, according to which the State will recognize the legal validity of foreign electronic signatures and electronic signature certificates when certain conditions are met.
Such regulations could lead to the understanding that all electronic transactions using foreign electronic signatures would have to undergo a "test" of legal validity. However, according to VCCI's analysis, consideration should be given to allowing parties to freely agree on the use of certain types of electronic signatures or electronic certificates, respecting the parties' freedom of choice.
Commercial transactions are characterized by maximum respect for the freedom of choice of businesses; the law only intervenes when it violates legal regulations, customs, and social ethics. Article 4.2 of the Draft also addresses this principle, specifically allowing parties the freedom to choose electronic means to conduct transactions.
Dispute resolution will be based on the reliability of electronic means by which the dispute resolution body makes a decision, without requiring recognition from a state agency. Recognition from a state agency should only be considered as a legal guarantee (almost never subject to review), and should not be considered a prerequisite for legal validity.
Therefore, VCCI proposes that the drafting agency add a regulation allowing parties in commercial activities to freely agree on the use of foreign electronic signatures or foreign electronic signature certificates to avoid increasing costs for the parties and creating barriers to cross-border transactions.
Promoting national digital transformation
In addition, VCCI commented on the regulations regarding the conditions for the conversion between paper documents and data messages to have legal validity in Article 14 of the Draft. VCCI believes that setting standards for conversion between the two forms, "paper" and "electronic," serves as a basis for parties to consider and trust the value of the conversion. However, it should be noted that the choice of technology and implementation method should strive to be as open as possible.
Consumers are increasingly preferring to choose and purchase products on e-commerce platforms.
According to VCCI, on the one hand, the Draft should still stipulate some "standard" methods that are highly secure and will have legal validity without needing further review. These are considered standard conditions that parties can choose to comply with to limit potential legal risks, especially in cases where the parties do not yet trust each other, such as in the first transaction. Naturally, the parties will have to accept paying additional costs for this transaction,...
In fact, for paper documents, the law allows parties to use various methods to ensure that copies are identical to the original. Article 3 of Decree 23/2015/ND-CP stipulates that a copy has legal validity when it is issued from the original register or when it is certified from the original document. This means that copies created in this way are implicitly considered legally valid (without further verification).
Therefore, VCCI proposes that the drafting agency add a regulation on receiving data messages converted from paper documents of state agencies, in the direction of accepting data messages that meet the requirements of Article 14.1 of the Draft or data messages converted from paper documents (for example, scanned copies, photocopies) and submitting the original for verification.
In addition to the issues mentioned above, in its comments, VCCI also requested the drafting agency to consider several regulations related to the following topics: conditions for conducting trusted services; open data; digital platforms; intermediary digital platforms; responsibilities of data processors, etc.
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