Slide 3 of 26
At the outset it is important to focus directly on the jurisdictional issues that apply to the development of Banking and Payment Systems as a result the electronic commerce within “cyberspace.” Three focus questions (or foundation principles) are used for identifying the issues addressed in this section:
Does the issue arise because of electronic commerce over the Internet?
Is the issue solely a banking/payment systems issue?
Is the issue a jurisdiction issue?
I believe that these principles will be employed generally throughout the work of the Project. The reason why these questions are important is that, frankly speaking, we financial lawyers who were working on the project got off to an uncertain start because a number of the issues we first focused on did not meet these criteria.
It is terribly easy to see as as a “banking issue” any two different sets of rules in two different jurisdictions with which lending institutions must commonly cope. Different mortgage lending laws are a good example. It is very easy to draw the conclusion that an issue is a “banking issue” simply because it is dealt with in the banking laws or regulations of many jurisdictions. Advertising by financial institutions is a good example; it is really a general consumer protection issue.
It is also terribly easy to draw the conclusion that a matter of significance arises a result of e-commerce on the Internet simply because a thing that used to be done in paper form can now be done electronically. If that were true, nearly everything would be an e-commerce issue. For our work, the application of electronic technology must create a difference that has jurisdictional significance.
Time does not permit me to describe the full results of this filtering process; suffice it to say that it was necessary and needed to be done rigorously.