Regulating E-Commerce: Formal Transactions in the Digital Age

As digital transactions become more common the need to regulate the commercial frontier of cyberspace becomes increasingly urgent. This has been recognised by national governments, supranational bodies and international organisations. The regulations proposed have though been offered in a piecemeal fashion. National governments attempt to fit cyberspace within the four corners of their (familiar) domestic jurisprudence, and even supranational and international bodies have been guilty of simply extending previous rules to the realm of cyberspace. This paper suggests that a coherent approach to the regulation of electronic commerce may start with an identification and application of principles rather than with the transference of rules. It uses as a reference, proposals for the modernisation of land transfer systems introduced in Canada and Australasia, currently being evaluated by the Keeper of the Registers of Scotland and the Law Commission/HM Registry. Underlying these proposals is a central issue: how are traditional formal requirements for property transactions accommodated in cyberspace? More fundamentally, if that most formal of transactions, the transfer of real property, can be modernised to meet the challenge of a new digital age, can not all modes of commerce be similarly modernised for the digital era? This paper evaluates whether a principled approach to answering these questions can, more generally, provide a workable framework for approaching e-commerce regulation.