5. Conclusion
The electronic securities market has created new spaces in which distinct rule sets will evolve. The globalization and the worldwide access to this market make it a super-active environment, totally independent from other trade markets. Special rules must then be created to regulate it.
The law of cybersecurities will have to take into account the special characteristics of the space it regulates and the types of individuals or agents found there. It must achieve international compliance and nations and states will have to surrender some local preferences to achieve uniformity, as has already happened in worldwide intellectual property protection.
Great part of the reason for the intellectual property protection beginning to achieve such an uniformity is the existence of an international organization, the World Intellectual Property Organization - WIPO. The creation of a similar organization for cybersecurities trading might be the best way for nations to begin jointly designing its legal framework and establishing binding provisions on a contractual basis.
However, it will be fundamental to legal authorities to seek a truly effective way of enforcing these global rules and making them binding worldwide. In addition to the creation of an international organization, the international treaty power, e.g., the kind of enforcement exerted by WTO or under NAFTA and GATT, seems under the current international law the most appropriate way to implement such rules. Such a treaty, referring to online securities transactions, would basically provide for a standardization of their practices and consensual measures to be utilized by traders, investors and their agents. Consequently, jurisdictional impasses would practically disappear, since the parties to the transactions would contractually foresee their outcomes, based on international principles.
This paper, in brief, without attempting to propose a detailed implementation of an international organization or the specific provisions of an international treaty (which may be the focus of another future research), demonstrates how some of the jurisdictional problems predicted for some potential Internet-based securities transactions may be diminished by an adaptation of current legal frameworks in different nations. An international effort would be key to establishing such goals, and perhaps the creation of an international organization to handle enforcement by agencies and an international treaty power would most likely be the appropriate way to begin such adaptation.
It is always difficult to define solutions that adequately address the changing issues and concerns presented by the new world of electronic transactions. Thus, every nation and every legislation needs to be flexible and capable of change, aiming at a real global union for the benefit of all. Today, online securities trading is a reality. Likewise, it calls for such flexibility and capability and, most important, a truly effective aspiration from every nation to achieve uniformity.
Notes
1..See International Telecommunications Union, Challenges to the Network (1997), reproduced in The World Trade Organization, Electronic Commerce and the Role of the WTO, 2 Special Studies 1, 10 (1998). A 1997 survey by the International Telecommunications Union shows that the transmission of a 42-page document from New York to Tokyo took 5 days by air mail, 24 hours by courier, 31 minutes by fax but only 2 minutes by Internet e-mail.
2..See Carleton Fiorina, The Communications Revolution, in Commonwealth Club of California Monthly Newsletter, July, 1999, reproduced in the American Bar Association ("ABA"), Achieving Legal Business Order in Cyberspace: A Report on Global Jurisdiction Issues Created by the Internet <www.kentlaw.edu/cyberlaw>, visited in November 10, 2000.
3..Computer Industry Almanac <http://www.c-i-a.com>, reproduced in the American Bar Association ("ABA"), id.
4..Europe and Asia Play Catch-up with US (last modified Jan. 11, 2000) <http://www.e-land.com/estats/011100_wwinternetuse.html> reproduced in the American Bar Association ("ABA"), id.
5..D.R. Johnson & D. Post, Law and Borders - the Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367, 1371 (1996).
6..See Thomas P. Vartanian, A Global Approach to the Laws of Jurisdiction in Cyberspace, Rayburn House Office Building, Room 2141 June 29, 2000, 10:00am <www.ffhsj.com/bancmail/bancpage.htm>, visited in December 10, 2000.
7..See William J. Clinton & Albert Gore, Jr., A Framework For Global Electronic Commerce (1997) <http://www.iitf.nist.gov/eleccomm/ecomm.htm>, visited November 11, 2000.
8..See D.R. Johnson & D. Post, id.
9..See Reno v. American Civil Liberties Union, 521 U.S. 844, 871 (1997).
10..Tapio Puurunen, The Legislative Jurisdiction of The States Over Transactions in International Electronic Commerce, 18 J. Marshall J. Computer & Info. L. 689 (2000).
11..See Lief Swedlow, Note, Three Paradigms of Presence: A Solution for Personal Jurisdiction on the Internet, 22 Okla. City U. L. Rev. 337 (1997).
12..See D.R. Johnson & D. Post, id.
13..See, e.g., Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328 (E.D. Mo. 1996); Inset Sys., Inc. v. Instruction Set, Inc., 937 F. Supp. 161 (D. Conn. 1996); State v. Granite Gates Resorts, Inc., 568 N.W.2d 715 (Minn. Ct. App. 1997)
14..Hearst Corp., 1997 WL 97097, at *20 (quoting Playboy Enterprises, Inc. v. Chuckleberry Publishing, Inc., 939 F. Supp. 1032, 1039-40 (S.D.N.Y. 1996)).
15..Cases Finding Jurisdiction on the Basis of Internet Contact <http://www.ssbb.com/yesjuris.html>, visited in December 10, 2000.
16..American Bar Association ("ABA"), id. supra notes 3 and 4.
17..Speech by SEC Commissioner Laura S. Unger: Securities Law and the Internet. Practicing Law Institute, San Francisco, California, July 28, 2000 <http://www.sec.gov/news/speeches/spch395.htm>, visited in December 10, 2000.
18..Speech by SEC Commissioner Laura S. Unger: Securities Law and the Internet. id.
19..Speech by SEC Commissioner Laura S. Unger: Securities Law and the Internet. id.
20..See discussion about cyber-bots in the Securities Working Group’s Revised Draft Report for the ABA’s Project, February 17, 2000 <http://www.kentlaw.edu/cyberlaw>, visited in November 25, 2000.
21..See Paul Nelson and Harry Eddis, Securities Law and The Internet: An International Perspective on E-Commerce, in Securities Law & The Internet, Doing Business in a Rapidly Changing Environment, Co-Chairs Brandon Becker, Stephen J. Schulte, Michelle C. Wallach, 2000, Practising Law Institute.
22..ABA’s Project, id.
23..See discussion in the Securities Working Group’s Revised Draft Report for the ABA’s Project, February 17, 2000 <http://www.kentlaw.edu/cyberlaw>, visited in November 10, 2000.
24..See, e.g., Electronic Prospectuses, Australian Securities Commission Policy Statement 107 (Sep. 18, 1996).
25..See discussion in the Securities Working Group’s Revised Draft Report for the ABA’s Project, id.
26..Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).
27..ABA’s Project, id.
28..ABA’s Project, id.