Some theoretical issues of e-commerce, business-to-consumer e-
E-commerce and the corelation with business-to-consumer e-commerce
Commerce has its roots in prehistoric transactions, defined by Black’s Law Dictionary as trade and traffic between different peoples or states The rise of commercial activities accelerated with the advent of the Internet and Electronic Data Interchange (EDI), leading to the emergence of E-commerce Originating in the 1960s, E-commerce has evolved significantly, driven by new technologies and innovations, with thousands of businesses entering the online market annually Since its inception in the 1970s, the convenience, safety, and user experience of E-commerce have improved dramatically.
E-commerce offers numerous advantages, such as 24/7 availability, quick access to a vast array of goods and services, and the ability to shop from anywhere in the world However, it also has drawbacks, including limited customer service, the inability for consumers to physically examine products before buying, and the wait time associated with shipping.
E-commerce (also written as eCommerce or similar variants) is the shorten word for electronic commerce.The definition of e-commerce varies in different countries and regions, yet, to some extent, delivers the mutual idea
According to the World Trade Organization (WTO), “ the term 'electronic commerce' is understood to mean the production, distribution, marketing, sale or delivery of goods and services by electronic means" 2
The European Union (EU) defined E-commerce in a narrower scope as “the sale or purchase of goods or services, whether between businesses, households, individuals
1 Electronic data interchange (EDI) means the transfer of information from one computer to another by electronic means in accordance with an agreed standard on information structure (Law on E-transactions 2005)
2 World Trade Organization, Electronic commerce at https://www.wto.org/english/tratop_e/ecom_e/ecom_e.htm
10 or private organizations, through electronic transactions conducted via the internet or other computer-mediated (online communication) networks.” 3
The Asia-Pacific Economic Cooperation (APEC) defines electronic commerce as a multifaceted term that encompasses a variety of technologies, infrastructures, processes, and products It integrates diverse industries and specific applications, connecting producers and consumers while facilitating information exchange and economic activities within the global marketplace known as the Internet.
The Organisation for Economic Co-operation and Development (OECD) defines e-commerce transactions as the buying or selling of goods and services conducted through computer networks, utilizing methods specifically designed for placing or receiving orders.
The UNCITRAL Model Law on Electronic Commerce (1996) outlines various commercial relationships, emphasizing that they encompass a wide range of transactions These include trade for goods and services, distribution agreements, commercial representation, leasing, construction, consulting, engineering, licensing, investment, financing, banking, insurance, joint ventures, and the transportation of goods or passengers across different modes of transport.
Law also clarified that commercial activities “cover matters arising from all relationships of a commercial nature, whether contractual or not”
In Vietnam, the 2005 Law on E-transactions does not explicitly define E-commerce but describes it as a transaction conducted through electronic means According to the law, electronic means encompass technologies such as electric, electronic, digital, magnetic, wireless, optical, and electro-magnetic systems This indicates the broad scope of governance regarding electronic transactions in the country.
3 Eurostat Statistic Explained, Glossary: E-commerce at http://ec.europa.eu/eurostat/statistics- explained/index.php/Glossary:E-commerce
4 OECD, Glossary of statistical terms at https://stats.oecd.org/glossary/detail.asp?IDG21
5 United Nations Commission on International Trade Law
The field of law encompasses electronic transactions across various domains, including business, commerce, and civil matters, as well as the management of state agencies The Law on E-transactions (2005), inspired by the UNCITRAL Model Law, adopts a broad definition of e-commerce, recognizing the diverse and rapidly evolving nature of the Internet marketplace This inclusive approach helps mitigate confusion for businesses and consumers engaged in e-commerce activities Furthermore, Decree No 52/2013/ND-CP clarifies "E-commerce activity" as the execution of part or all of commercial transactions through electronic means connected to the Internet, mobile networks, or other open networks.
In summary, e-commerce is a business model that enables companies or individuals to carry out all or part of their commercial activities electronically, primarily through the internet.
E-commerce transactions are not conducted through papers but over the network, whereas traditional commerce oftenrequires parties to meet in person in order to negotiate and sign contracts In this case, electronic means such as telephone, fax,… are used to convey additional data and unimportant information among partners However, the main transaction method used in e-commerce is the network, which can allow anybody, even from remote areas to the developed cities, whether knowing each other or not, to participate in the global market and conduct transactions
Although traditional commerce tends to be conducted within separate nations, E-commerce market is opened globally for every participants In other words, the
12 global e-commerce market enables individuals and enterprises to break through borders and carry out commercial activities with the help of a localized website
E-commerce transactions require at least three participants: the buyer, the seller, and a third-party intermediary such as an online service provider or authentication agency This third party is crucial as it facilitates network services for storing and transmitting electronic data, ensuring the security and trustworthiness of e-transactions.
E-commerce operates around the clock, enabling transactions to occur automatically online without incurring extra costs However, the effectiveness of this continuous service relies on the stability of the internet connection.
(5) Information network in e-commerce is the market
The information network is essential for both traditional and e-commerce, but it plays a pivotal role in the latter by creating online platforms that enable businesses to explore new opportunities Major websites like Google and Yahoo provide vast amounts of information, allowing millions to access daily news and expand their knowledge Additionally, platforms such as Amazon and eBay revolutionize shopping by enabling users to make purchases with just a few clicks This highlights the critical importance of information networks in the growth and development of e-commerce.
(6) E-commerce depends on the development of technology and users’ level
To advance e-commerce, it is essential to establish and consistently enhance the technical infrastructure, including a robust computer network and reliable access to global information Additionally, a skilled workforce is crucial, comprising individuals who are not only tech-savvy but also possess expertise in business management and commerce.
Contemporary electronic commerce can be categorized into various types, primarily based on the goods sold and the nature of the participants involved.
The second category will be analyzed further below:
E-commerce operates in all four of the major market segments, which are: Business to business (B2B); Business to consumer (B2C); Consumer to consumer (C2C); and Consumer to business (C2B)
Business-to-consumer (B2C) e-commerce
The rise of e-commerce and the growing use of the internet have led to the emergence of B2C (business-to-consumer) e-commerce, as many companies recognized the advantages of selling directly to consumers online Today, the B2C model is the most recognized and widely adopted approach in the digital marketplace.
When it comes to the definition of B2C, confusion over the meaning of acronyms is particularly significant in the case of B2C where common belief is that the
“C” is interpreted to mean “customer” However, it has become more popular for the
B2C, which stands for "business to consumer," refers to the trading process where businesses sell goods or services directly to end consumers In this context, 'end consumption' signifies that these products or services do not play a direct role in the production of other goods and services.
Oracle 7 , in their “Application Developer’s Guide”, (Oracle, 2000) define business-to-consumer as “a term describing the communication between businesses and consumers in the selling of goods and services” Using a similar idea, their
The term "business-to-consumer" (B2C) refers to the capacity of companies to provide products, services, support, and information directly to individual consumers via the Internet.
Business-to-consumer (B2C) is defined as the use of web-based technologies to sell goods or services directly to consumers (IBM, 2001) While some interpretations simplify B2C to just the sale of products between businesses and consumers (Smart Computing Dictionary, 2001), it actually encompasses a two-way exchange of information between the consumer and the business, highlighting the importance of communication and interaction in e-commerce.
B2C e-commerce refers to the transaction process between producers and end consumers involving the exchange of goods, services, and information This interaction occurs with the expectation of monetary payment, either actual or potential, facilitating the consumption of these offerings.
B2C e-commerce refers to the direct online exchange of goods and services between businesses and individual consumers, typically through accessible online stores These web shops are designed to allow any visitor to browse and make purchases easily.
Oracle Corporation is a leading American multinational computer technology company based in Austin, Texas Founded in 1977, it focuses on developing and marketing a wide range of database software, cloud-engineered systems, and enterprise software products Notably, Oracle is renowned for its flagship database management systems, which are integral to various business operations globally.
8 “IBM (International Business Machines Corporation) is an American multinational technology company headquartered in Armonk, New York, United States…” –Wikipedia, IBM at https://en.wikipedia.org/wiki/IBM
16 meaning that there is no need for a person to login in order to make any product related enquiry
Examples of B2C businesses includes global names like Staples, Wal-Mart, REI, or domestic names like Tiki, Sendo, Adayroi,… in Vietnam
1.2.2 Features of business-to-consumer e-commerce:
The B2C e-commerce model is very familiar and popular all over the world including Vietnam, yet, it is still growing and has enjoyed a boom recently
The B2C model, while easy to operate and dynamic, can also be unpredictable and inconsistent The rise of the internet has significantly advanced this type of commerce, leading to the emergence of numerous virtual stores and online malls that offer a wide range of consumer goods, including electronics, software, books, footwear, vehicles, food items, financial services, and digital publications.
The B2C model offers consumers greater access to informative content compared to traditional retail, leading to the perception of lower prices without sacrificing personalized customer service Additionally, it ensures efficient processing and prompt delivery of orders.
The B2C model is marked by a diverse range of markets and suppliers, allowing any supplier to create a website or transaction channel to showcase their products and services However, this diversity fosters a competitive environment, making it increasingly challenging for companies to cultivate customer loyalty as consumers have access to an overwhelming array of options.
B2C e-commerce significantly lowers production, labor, and communication costs for businesses By utilizing this model, companies can reduce expenses related to materials, printing, information sharing, and communication, ultimately leading to higher profits compared to traditional business models.
Moreover, B2C model can improve distribution system because the showcase system is then replaced or supported by the online showroom.
Business-to-consumer e-commerce dispute
Disputes are a natural aspect of business, particularly in the e-commerce landscape, where transactions often happen without direct personal interaction Understanding B2C e-commerce disputes requires a clear definition of the term, as these conflicts tend to arise more frequently in online transactions.
According to Black’s Law Dictionary, a "dispute" is defined as an assertion of a right or claim from one party that is met with opposing claims from another Generally, the legal interpretation of "dispute" encompasses dissent, inconsistencies, or conflicts of interest, rights, and obligations between parties engaged in various economic relationships While disputes typically relate to economic interests, they can also arise in contexts where the involved parties are not primarily motivated by profit, highlighting a unique characteristic of economic disputes.
Commercial dispute is evidently a small part of economic disputes The concept oftrade dispute was brought out by the WTO as in the following line:
A trade dispute occurs when a member country implements a trade policy or takes actions perceived by other members as violations of WTO agreements or a failure to meet obligations.
Trade disputes, as defined by the WTO, are international conflicts that arise exclusively among its member countries, focusing on the enforcement of rights and obligations outlined in WTO agreements In Vietnam, the term "commercial dispute" was initially defined in the Commercial Code.
9 World Trade Organization, Understanding the WTO: Settling disputes: A unique contribution at https://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm
A commercial dispute, as defined in Article 238 (1997), arises from either the non-performance or defective performance of a contract during commercial transactions Despite varying expressions, both definitions convey that a "commercial dispute" occurs when parties act in their own interest, potentially breaching the contract or agreement.
The term "commercial dispute," while not explicitly defined in the Commercial Law of 2005, refers to disagreements or conflicts regarding the rights and obligations of parties engaged in commercial activities.
Vietnamese lawmakers have not provided a specific definition for disputes in the B2C e-commerce environment However, Article 51 of the Law on E-Transaction (2005) states that "disputes in e-transactions are disputes arising in the course of transaction by electronic means." This definition is broad, encompassing both commercial and non-commercial activities, while B2C e-commerce represents only a subset of overall commerce Despite the lack of detailed legal clarification, it is generally understood that B2C e-commerce disputes involve disagreements, inconsistencies, or conflicts of interest, rights, and obligations between businesses and consumers during B2C e-commerce transactions.
1.3.2 Features of business-to-consumer e-commerce dispute
B2C disputes share similarities with commercial disputes, particularly regarding the parties involved, where at least one party must be a trader In the realm of B2C e-commerce, the other party typically consists of consumers, which can include both individuals and organizations Conflicts often emerge when consumers engage in online purchases of products or services.
A key aspect of the dispute is that it arises from a breach of contract, where one party does not meet their obligations as outlined in the agreement.
A failure to fulfill contractual obligations, or an indication of inability to perform, can lead to conflicts between parties due to economic interests In B2C e-commerce, disputes often stem from conflicting rights and obligations outlined in electronic contracts, particularly related to profit-driven activities such as the purchase of goods and the provision of services online.
In the B2C e-commerce landscape, the presence of a third party is a constant factor, often comprising online service providers or authentication agencies that facilitate e-transactions through their platforms.
Data messages in B2C e-commerce are recognized as valid evidence under Article 14 of the 2005 Law on E-Transactions These messages encompass information generated, sent, received, or stored through electronic or optical means, including EDI, email, telegrams, telex, and telecopy When data messages are transmitted and certified by a third party, they hold legitimacy as evidence.
In summary, disputes in B2C e-commerce and commerce at large are an inevitable aspect of the market economy It is crucial to resolve these disputes transparently and effectively to safeguard the legitimate rights and interests of all parties involved, prevent legal violations in commercial activities, and maintain social order.
Chapter 1 includes some theoretical issues of e-commerce, B2C e-commerce and B2C e-commerce dispute The thesis has clarified the definition and characteristics of e-commerce, B2C e-commerce and its dispute It then differentiates B2C e- commerce with other e-commerce models B2C e-commerce dispute has been analyzed with explanation and the need to provide legal framework for its settlement in Vietnam The review of the research enables the author to identify the issues arising from the settlement of B2C e-commerce disputes and raise questions to be resolved in the next chapter
The reality of applying the Law on business-to-consumer e-commerce
The Law on business-to-consumer e-commerce dispute settlement
2.1.1 The concept of theLaw on business-to-consumer e-commerce dispute settlement
The rise of Internet usage worldwide has led to an increase in disputes related to e-commerce As businesses expand their reach to large groups of online consumers, the likelihood of disputes in online transactions grows, similar to offline transactions To foster confidence in e-commerce, it is crucial to resolve electronic disputes effectively, as uncertainty regarding the legal framework can deter consumers from making purchases and prevent companies from entering the digital marketplace.
The importance of making e-commerce a safe market for both consumers and companies lead to the need of a strong and complete legal system in a national scope
In Vietnam, enhancing the legal framework for resolving B2C e-commerce disputes is crucial for addressing contemporary challenges Consumers expect accessible and efficient redress mechanisms when issues arise in e-commerce transactions Therefore, it is essential to improve the relevant laws to facilitate optimal resolutions for all parties involved in disputes.
The Law on B2C e-commerce dispute settlement serves as a comprehensive legal framework established by competent state agencies to govern the resolution of disputes between companies and consumers This framework outlines the entire process, from the initiation of a dispute to its final resolution.
Since 2005, Vietnam has established a legal framework for e-commerce through various laws, decrees, and circulars Although the Law on e-commerce has undergone improvements, it has not been updated recently, indicating a lag in the legal framework's ability to adapt to the rapid changes of the 21st century This stagnation is particularly evident in the area of e-commerce dispute resolution, which remains underdeveloped and insufficiently supportive of both consumers and businesses Currently, only traditional dispute settlement methods are available, which are often cumbersome and time-consuming in the context of Industry 4.0.
To effectively resolve electronic disputes in B2C e-commerce, participants should consider relevant legal frameworks such as the Commercial Law (2005), Law on E-transactions (2005), Civil Code (2015), and Code of Civil Procedure (2015) Additionally, e-commerce activities and their dispute resolution are governed by related legal documents, including the Law on Information Technology (2006), Law on Telecommunications (2009), Intellectual Property Law (2013), and Law on Protection of Consumer Rights (2010) Since B2C e-commerce is a subset of the broader e-commerce sector, disputes arising in this area can also refer to the aforementioned regulations.
2.1.2 The role of the Law on business-to-consumer e-commerce dispute settlement
The law governing dispute settlement in B2C e-commerce is crucial for ensuring safe e-transactions for both businesses and consumers It provides a legal framework that enables parties to safeguard their legitimate rights and interests In the event of a dispute, each party can select an appropriate resolution method offered by the law to effectively resolve the issue.
10 “Industry 4.0 is a name for the current trend of automation and data exchange in manufacturing technologies.”-Wikipedia, Industry 4.0 at https://en.wikipedia.org/wiki/Industry_4.0
Secondly, the law on dispute settlement in B2C e-commere is built to guarantee
The Constitution of Vietnam guarantees the right to freedom of enterprise, allowing parties to choose their preferred methods for resolving disputes in B2C e-commerce transactions To foster a fair and trustworthy business environment, it is essential for the law to offer updated and suitable resolution mechanisms, enabling traders to operate ethically while providing consumers with effective remedies for their issues.
The Law on dispute settlement in B2C e-commerce serves as a crucial legal tool for competent agencies, enabling effective application in resolving disputes By establishing clear and practical procedures, the law empowers these agencies to assist both companies and consumers in successfully navigating and resolving conflicts.
2.1.3 Principles of business-to-consumer e-commerce dispute settlement
Based on the right to freedom of enterprise and choice and equality before the law, the process of dispute settlement has to follow these principles:
The principle of self-determination allows parties to negotiate their preferred method of dispute resolution without state intervention They have the option to appoint representatives or lawyers to advocate for their rights Furthermore, during arbitration or litigation, parties can modify their requests or mutually agree to terms, provided these actions align with legal standards and social ethics.
Equality before the law ensures that all parties receive equal treatment and access to justice, preventing any individual or group from being favored or discriminated against by the government in legal disputes This principle is crucial for maintaining fairness in the judicial system, particularly when individuals seek resolution through the courts.
- Meditation/Conciliation: When resolving dispute, parties are encouraged to choose conciliation before bringing the case to court When the court handle the case,
24 parties will aslo be encouraged to participate in obligatory conciliation to reach mutual agreement on the resolution of the cases
To ensure business activities remain uninterrupted, it is essential to resolve disputes swiftly and efficiently A legal framework should provide parties with effective, cost-saving, and time-efficient methods for settling disputes, as the traditional litigation process has become less appealing due to its high costs and lengthy duration (Cortés 2013) By facilitating prompt dispute resolution, the legal system can help maintain seamless business operations.
When selecting a dispute resolution method, parties must adhere to both general and specific principles associated with that method For instance, if they opt for arbitration, they must comply with the regulations outlined in the 2010 Law on Commercial Arbitration Alternatively, if they choose litigation, they need to follow the principles established in the 2015 Civil Procedure Code.
2.1.4 Forms of business-to-consumer e-commerce dispute resolution
In Vietnam, forms of dispute resolution is regulated in the Commercial Law
(2005), hence, resolutions for disputes occuring in B2C e-commerce environment will also be applied according to this Law:
“Article 317.- Forms of resolution of disputes
2 Conciliation between the parties by a body, organization or individual selected by the parties to act as the conciliation mediator
3 Resolution by the Arbitration or the Court
Procedures for resolution of commercial disputes by arbitration or a court shall comply with procedures applicable to arbitrations or courts provided…” 11
In general, Vietnam’s Law provided 4 types of dispute resolutions, which are: negotiation, conciliation, arbitration, and court Besides, e-commerce dispute in which
11 Commercial Law at http://www.moj.gov.vn/vbpq/en/lists/vn%20bn%20php%20lut/view_detail.aspx?itemidT97
Violations of e-transaction laws are typically addressed through administrative measures; however, this thesis will not discuss this approach as it is more commonly applied in domain name disputes rather than in B2C e-commerce contexts.
The rapid growth of e-commerce and the widespread use of the Internet are transforming various facets of Vietnamese society, resulting in a surge of e-disputes This trend necessitates that individuals make informed decisions regarding the most suitable and effective methods for resolving these disputes.
Negotiation is a widely used method for resolving disputes, defined as a process where two or more parties engage in discussions to achieve a mutually beneficial outcome without third-party involvement Unlike other dispute resolution methods that require intermediaries, negotiation empowers the parties to control both the process and the outcome, making it a more efficient and cost-effective option.
However, negotiation in e-commerce has some other significant features:
The legal system of business-to-consumer e-commerce dispute settlement
Vietnam is actively engaging in international integration by signing key treaties, including the Trans-Pacific Strategic Economic Partnership Agreement (TPP) 12 Additionally, the country has established a legal framework for e-commerce that aligns with the principles and essential elements of the UNCITRAL Model Law on Electronic Commerce.
(1996) and Electronic Signatures (2001) Vietnam is also considering joining the United Convention on the Use of Electronic Transactions
2.2.1.1 The UNCITRAL Model Law on Electronic Commerce (1996)
The United Nations Commission on International Trade Law (UNCITRAL) serves as the primary legal authority within the UN system, focusing on international trade law Its mission is to modernize and harmonize regulations governing international business transactions.
The Model Law on Electronice Commerce (MLEC) was adopted in 1996 for the purpose of enabling and faciliatating commerce conducted using electronic means by
12 TPP has been renamed as theComprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) in 2018
13 UNCITRAL, About UNCITRAL at http://www.uncitral.org/uncitral/en/about_us.html
The Model Law offers a framework of internationally recognized rules designed to eliminate legal barriers and enhance predictability in electronic commerce While it is not legally binding, it serves as a foundational guideline for the regulation of e-commerce.
Vietnam's lawmakers have developed a robust legal framework for e-commerce by adopting principles from the Model Law A key advancement is the legal recognition of data messages, ensuring that information conveyed through these messages holds legal effect, validity, and enforceability.
2.2.1.2 The UNCITRAL Model Law on Electronic Signatures (2001)
Adopted in 2001 by UNCITRAL, the Model Law on Electronic Signatures aims to promote the use of electronic signatures in international commercial transactions.
The rise of electronic authentication methods as alternatives to handwritten signatures highlights the necessity for a clear legal framework to clarify the legal implications of using electronic means The Model Law on Electronic Signatures encompasses several key aspects, including the legal recognition of electronic signatures, ensuring that signatures meet reliability and appropriateness standards, the responsibilities of both the signatory and the certification service provider, and the acknowledgment of foreign certificates and electronic signatures.
This model law plays a crucial role in facilitating e-commerce by providing universal recognition and serving as a key reference in the field It supports the successful execution of electronic transactions and commercial contracts, enhancing the overall effectiveness of online business operations.
14 UNCITRAL, UNCINTRAL Model Law on Electronic Commerce (1996) at http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/1996Model.html
15 UNCITRAL, UNCITRAL Model Law on Electronic signatures (2001) at http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/2001Model_signatures.html
2.2.1.3 The Trans-Pacific Strategic Economic Partnership Agreement
The Trans-Pacific Partnership (TPP) was a free trade agreement aimed at liberalizing trade and investment among 12 Pacific-rim countries, including New Zealand, Australia, and the United States, which later withdrew Signed on February 4, 2016, in Auckland, New Zealand, the TPP encompasses 30 chapters, with chapter 14 specifically addressing e-commerce regulations.
- Recognize and respect the freedom to choose electronic means to carry out commercial activities
- Recognize the validity of data messages, electronic signatures (e-signatures) as well as regulations on e-signature certification
- Protect consumers’ right in e-commerce (online consumers) and regulations on unwanted commercial messages (spam messages)
The TPP Agreement on Electronic Commerce emphasizes that each party must uphold a legal framework for electronic transactions that aligns with the UNCITRAL Model Law on Electronic Commerce (1996) and the United Nations Convention on the Use of Electronic Communications in International Contracts (2005) Additionally, it encourages parties to minimize unnecessary regulatory burdens on electronic transactions and to involve stakeholders in shaping their legal frameworks for these transactions.
2.2.1.4 The role of the Organisation for Economic Co-operation and
Development(OECD) in the context of electronic commerce
The OECD’s Committee on Consumer Policy serves as a key global forum for e-commerce regulation, producing significant documents such as the “OECD Action Plan for Electronic Commerce” (October 1998) This plan emphasizes the importance of privacy and consumer protection in the digital marketplace The revised OECD Recommendation of Consumer Protection in E-commerce (2014) highlights the benefits and risks associated with e-commerce for consumers, addressing issues such as non-monetary transactions, digital content products, active consumer engagement, mobile device usage, privacy and security concerns, payment protection, and product safety.
Vietnam should utilize the OECD's recommendations to anticipate potential risks for its citizens and enhance its legal framework by implementing updated and sufficient regulations for e-commerce dispute resolution.
2.2.1.5 United Nations Convention on the use of electronic communications in international contracts (New York, 2005)
The Electronic communications convention which was adopted by UN in 2005 purposed to aid the use of electronic communications in international trade by
“assuring contracts and other communications exchanged electronically are as valid and enforceable as their traditional paper-based equivalents” [8]
The Electronic Communications Convention encompasses legal recognition of electronic communications, form requirements, error resolution in electronic communications, and regulations regarding the timing and location of dispatch and receipt This convention is vital for promoting international trade through the effective use of the global internet Although Vietnam has not yet signed or acceded to this Convention, it views potential membership as a means to align with international legal standards and enhance its integration into the global economy.
2.2.2 The legal system of business-to-consumer e-commerce dispute settlement in Vietnam
Before 2000, e-commerce was an unfamiliar legal concept in Vietnam However, significant legal documents emerged in 2004 and were enacted in 2005, establishing Vietnam's legal framework for e-commerce This year marked the passage of three essential laws by the National Assembly: the Commercial Law, the Civil Code, and the Law on E-transactions, which collectively provided the legal foundation for e-commerce Furthermore, the regulation of e-commerce dispute resolution is addressed by the Law on Information Technology.
(2006), Law on Telecommunications (2009), Criminal Code; Intellectual Property Law
Since 2010, Vietnam has established a robust legal framework for e-commerce, including the Law on Protection of Consumer Rights (2010) and the Investment Law (2014), ensuring that regulations are effectively aligned with the industry's growth.
Commercial Law serves as the foundational legal framework for commercial activities, including e-commerce, and plays a crucial role in establishing the international recognition of the legal validity of data messages in these transactions.
“Article 15.- Principle of recognition of legal validity of data messages in commercial activities
In commercial activities, data messages which satisfy all technical conditions and standards provided for by law shall be recognized legally valid as documents.” 16
Secondly, the Civil Code (newly replaced in 2015) approved in Clause 1, Article
The reality of applying the Law on business-to-consumer e-commerce
E-commerce disputes frequently occur in B2C relationships due to issues such as trader deception, complications with return policies, discrepancies in advertised service quality, and concerns over personal information protection Often, these disputes arise from the actions of businesses, website owners, or traders selling products on electronic exchange platforms or open networks.
2.3.1 Dispute settlement over business-to-consumer e-commerce contracts
Disputes over e-commerce contracts can be understood as disputes occuring during the process of entering into and performing B2C e-commerce contracts
2.3.1.1 Dispute over the process of entering into business-to-consumer e-commerce contracts
In the B2C e-commerce landscape, electronic contracts are primarily classified into two types: clickwrap and browsewrap agreements Clickwrap agreements necessitate consumers to actively consent to terms by clicking an "I accept" or "I agree" button, without which the transaction cannot proceed, indicating no contract formation Conversely, browsewrap agreements do not require explicit agreement; users are deemed to have consented simply by continuing to navigate the website after being made aware of the terms.
Online terms of use in e-contracts are generally enforceable like traditional paper contracts, but they differ in key aspects During e-transactions, consumers often engage with adhesive contracts created by businesses on websites.
Consumers often find themselves in a position where they cannot negotiate contract terms, leading to a 'take it or leave it' scenario As a result, many consumers bypass reading standard terms and conditions, frequently clicking the "I agree" box without fully understanding the implications This behavior reflects a lack of genuine consent, as their decisions are often made unconsciously and do not represent their true intentions.
Failing to confirm the conclusion of a contract can result in false agreements and unnecessary disputes for consumers Technical errors may prevent the buyer from being bound to the contract, and while some countries permit buyers to notify sellers of such errors, this defense is seldom upheld in court Courts typically view sellers as proficient in the technical aspects of online transactions.
To ensure consumers’ right in such cases, the Law on Information Technology
“ Article 32.- Settlement of consequences of incorrect loading of commercial information in the network environment
If a buyer mistakenly inputs information on a sales website and the system does not allow for modifications, they may unilaterally terminate the contract, provided they have taken the necessary steps.
1 Promptly notifying the seller of the incorrectly loaded information and the seller has already confirmed the receipt of that notice;
2 Returning the goods he/she has received but not yet used or enjoyed any benefits from the goods.”
The Circular No 09/2008/TT-BTC also regulated the contracting process through e-commerce websites, which can help define the scope of responsibilities of both traders and consumers in contract
Current legal provisions for consumer protection in electronic contracts align closely with international standards, addressing key areas such as information disclosure by sellers, contract content review mechanisms, error correction processes, and safeguarding consumers' personal information However, the regulations concerning consumer interests in electronic contracts are fragmented across multiple documents, creating challenges in accessibility and comprehension.
In addition, those regulations are provided in by-law document with low legal effect, therefore, the adjustment in reality is not rather effective enough
Disputes over contracts on e-commerce platforms often stem from challenges related to electronic signatures, including the identification and verification of the parties involved in digital transactions Digital signatures enhance authentication, ensuring that individuals can be identified and linked to the documents they sign They confirm the authenticity of the signer, providing assurance that the person is real and not just a digital persona However, when disputes arise, especially in international contexts, determining the contract's jurisdiction can be complex, complicating the ability to present original signatures in court Additionally, risks associated with third-party data storage and authentication can lead to data loss and contract security issues The virtual nature of these transactions further complicates the assessment of a contracting partner's legal capacity, necessitating careful consideration of these factors.
17 SB Law, Hop dong thuong mai dien tu at http://vi.sblaw.vn/hop-dong-thuong-mai-dien-tu/
38 consideration when amending the legal system in order to prevent dispute over entering an e-contract
2.3.1.2 Dispute over the perfomance of business-to-consumer e- commerce contracts
Disputes in e-commerce contracts arise from disagreements between parties regarding the non-performance or defective execution of contractual rights and obligations during commercial transactions These disputes typically manifest in various forms.
(1) Disputes over product quality when shopping on online websites:
Consumers often find themselves at a disadvantage in the advertising landscape, as misleading information can lead them to purchase low-quality products This commonly results in disputes when the delivered items do not match the advertised specifications, such as design, color, or size Such discrepancies are prevalent in B2C e-commerce transactions, highlighting the need for accurate advertising practices to protect consumer interests.
A consumer named Vo Phu Trung (Cao Lanh City, Dong Thap Province) shared that on January 23th, 2018 Lazada websiteadvertised a 32 inch HD LED TV – Model
The LC-32LE280X television, priced at 3,599,000 VND—down from its original price of 3,690,000 VND—boasts impressive features such as HD resolution, LED backlighting for enhanced brightness, built-in DVB-T2, and USB video playback for both pictures and music Recognizing the value of this fair price, Mr Trung promptly placed an order for the TV, confirmed by Lazada with the code 372173823.
Mr Trung noticed a motley discoloration in the upper left corner of his TV after just five days of using it for two hours daily Upon reporting the issue to Lazada, the company instructed him to return the TV via the post office in accordance with their return policy and assured him that a replacement would be provided between January 23 and January 28.
Mr Trung believed that Lazada advertised a TV on its website for sale to others after informing him it was out of stock following his purchase Despite multiple attempts to contact Lazada for a refund, he did not receive his money back, and the company failed to offer any compensation for the inconvenience.
Negotiation between consumers and companies can often fall short in effectively protecting consumer rights, as it lacks the necessary commitment from companies to rectify their mistakes Consumers deserve the right to voice their dissatisfaction, have their complaints acknowledged, and receive appropriate feedback and compensation Unfortunately, inadequate responses from companies in such disputes can significantly erode consumer confidence in e-commerce.
(2) Disputes over the delivery of goods:
When sellers or service providers do not meet their contractual obligations to deliver goods or services, it can lead to significant harm for the purchaser.
Limitations on the application of the Law on business-to-consumer e-
Vietnam's legal framework for e-commerce comprises numerous laws and decrees; however, the regulations concerning e-dispute settlement are vague and dispersed across various legal documents This lack of clarity undermines the legal foundation necessary for participants to resolve disputes effectively, potentially discouraging both companies and consumers from engaging in e-commerce activities.
The Law on E-transactions (2005) briefly addresses dispute settlement in Articles 50 to 52, but lacks comprehensive regulations for e-contract disputes Article 52 encourages parties to resolve conflicts through self-conciliation; however, the absence of detailed guidance may lead to challenges and confusion in managing e-transaction disputes.
If parties are unable to resolve their disputes through conciliation, they may find themselves uncertain about the next steps, as the law merely suggests that the resolution of disputes related to e-transactions should adhere to legal provisions.
Decree No 52/2013/ND-CP on E-commerce outlines dispute resolution in Article 76, emphasizing that disputes should be settled through negotiation, mediation, arbitration, or court according to existing regulations However, the decree does not prioritize these methods, potentially leading to confusion for inexperienced consumers Additionally, it lacks specific regulations regarding the authority, order, and procedures for each dispute resolution type.
49 present, the Civil Procedure Code (2015) has no separate regulations on the order, procedures and jurisdiction to settle e-commerce disputes
Negotiation and conciliation are the primary methods for settling disputes in the B2C e-commerce environment, allowing consumers to request performance from traders based on electronic contracts However, traders often present formal dispute settlement rules on their websites without genuine cooperation, leading to delays in resolution and a lack of penalties for consumer damages This highlights the urgent need for accessible, efficient, and low-cost dispute settlement options While conciliation and arbitration are common, traditional methods are increasingly ineffective Therefore, implementing an Online Dispute Resolution (ODR) platform in Vietnam is essential for facilitating quicker and simpler resolutions, although it currently lacks legal recognition International practices suggest that online negotiation and conciliation should be strictly regulated, with effective oversight to enhance the speed and satisfaction of dispute resolution for both consumers and businesses.
A significant limitation in the provision of electronic evidence arises from the Civil Code (2015), which acknowledges data messages as legal evidence but lacks clear procedures for collecting such evidence This raises concerns about the acceptance of self-printed data from each party's system and who is authorized to evaluate the legality of these transactions Consequently, this ambiguity may lead to delays in dispute resolution and compromise the objectivity and clarity of judgments in e-contract cases, particularly as gathering electronic traces requires specialized technical and computer skills.
50 insituation when the person concerned has to recover deleted, overwritten, encrypted,
To ensure electronic evidence is admissible in court, it is essential to enhance the regulations outlined in the Civil Code regarding the methods, procedures, and rights of individuals collecting such evidence This improvement is crucial for consumers seeking to safeguard their rights effectively.
In conclusion, while most courts continue to rely on traditional paper-based methods, the six leading ASEAN countries—Singapore, Malaysia, Indonesia, Thailand, the Philippines, and Brunei—have embraced online filing systems Additionally, the existing regulations on e-commerce dispute resolution offer only general principles, lacking comprehensive guidelines for Online Dispute Resolution (ODR) platforms Therefore, there is an urgent need to enhance regulations that specifically address ODR in the context of dispute settlement.
Chapter 2 of the thesis has clarified the provisions of legal documents in the international and national scope in the B2C e-commerce dispute settlement Vietnam’s legal framework has also been analyzed to point out the advantages and drawbacks in supporting the parties to resolve disputes In this chapter, examples of dispute settlement in Vietnam are provided to show the application of law in reality Disputes arising in B2C e-commerce are normally because of the traders’ deception, the delivery of goods with the return policy and the quality of advertised services Chapter 2 then pointed out limitations on the process of dispute settlement in legal system and its application in reality