Commenting on the Draft Law on Electronic Transactions (expected to be commented on and approved by the National Assembly at the 5th Session of the 15th National Assembly), the Vietnam Federation of Commerce and Industry (VCCI) suggested that the drafting agency should consider adding some criteria to facilitate electronic transactions, as well as create a solid legal framework to build an increasingly developed Vietnamese digital economy.
Having a legal framework for electronic transactions will create an important premise to promote the national digital transformation process.
Thereby, overcoming the limitations and shortcomings of current laws, ensuring safety for businesses and people in electronic transactions, as well as supporting the development of electronic transactions, creating an important premise to promote the national digital transformation process,...
Ensuring transparency in electronic transactions
The revised Law on Electronic Transactions is considered a very important law project, especially in the current period when the trend of conducting transactions by electronic means is inevitable and will dominate in the near future.
According to VCCI, Article 25.1 of the Draft stipulates that an electronic signature that meets the security requirements can replace an individual's signature. However, the Draft does not have any provisions on the criteria for determining whether an electronic signature is considered secure. Therefore, it is recommended that the drafting agency supplement regulations on this content, in other words, reconsider the provisions in Article 22 of the 2005 Law on Electronic Transactions.
Analyzing this issue in detail, VCCI believes that Article 28.1.d of the Draft stipulates that one of the conditions for recognizing foreign electronic signatures is that the users are foreign organizations and individuals; Vietnamese organizations and individuals who need to conduct electronic transactions with foreign partners whose electronic signature certificates of domestic service providers have not been recognized in that country.
However, according to VCCI, this regulation is not really reasonable because it is difficult for Vietnamese organizations and individuals to know whether domestic service providers have been recognized or not in the partner country. This regulation will cause difficulties for Vietnamese enterprises when transacting with foreign partners.
Not to mention, Article 28 of the Draft also stipulates the use and recognition of foreign electronic signatures, accordingly, the State will recognize the legal value of foreign electronic signatures and electronic signature certificates when meeting certain conditions.
Such a provision may lead to the understanding that all electronic transactions using foreign electronic signatures will have to undergo a “test” of legal value. However, according to VCCI’s analysis, it is necessary to consider allowing the parties to freely agree on the use of certain types of electronic signatures or electronic certificates, in order to respect the parties’ freedom of choice.
Commercial transactions are characterized by maximum respect for the freedom of choice of enterprises, the law only intervenes when it is contrary to the provisions of the law, public morality and social ethics. Article 4.2 of the Draft also mentions this principle, specifically allowing the parties to freely choose electronic means to conduct transactions.
Dispute resolution will be based on the reliability of electronic means to make decisions by the dispute resolution body without requiring recognition by a state agency. Recognition from a state agency should only be considered as a legal guarantee (almost unreviewable), not as a prerequisite for legal validity.
Therefore, VCCI recommends that the drafting agency supplement regulations in the direction of 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, comments on the provisions on the conditions for the conversion between paper documents and data messages to have legal value are provided in Article 14 of the Draft. VCCI believes that the provision of standards for the conversion between the two forms of "paper" and "electronic" is meaningful as a basis for the parties to consider and trust the value of the conversion form. However, it should be noted that the choice of technology and implementation method should be designed in the most open direction.
Consumers increasingly prioritize choosing and purchasing products on e-commerce platforms.
According to VCCI, on the one hand, the Draft should still stipulate some “standard” methods, which are highly secure and will have legal value without needing to be reviewed. These are considered standard conditions that the parties can choose to comply with to limit possible legal risks, especially in cases where the parties do not yet have mutual trust, such as in the first transaction. Of course, 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 the copy is identical to the original. Article 3 of Decree 23/2015/ND-CP stipulates that a copy is legally valid when it is issued from the original or certified from the original. This means that copies created in this way are automatically legally valid (without the need for re-checking).
Therefore, VCCI recommends that the drafting agency supplement regulations on receiving data messages converted from paper documents of state agencies in the direction of accepting data messages that meet the requirements in Article 14.1 of the Draft or data messages converted from paper documents (for example, scans, copies) and submit the original for comparison.
In addition to the above issues, in the comment document, VCCI also requested the drafting agency to review and consider a number of regulations related to the content: Conditions for doing business in trusted services; open data; digital platforms; intermediary digital platforms; responsibilities of data processors, etc.
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