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Thirdly, “soft law” in nature, such standards often find it hard for themselves to be enforced, without support of the nations. At the same time, no rule is free. Lack of a formal mechanism to separate the risk and cost of global monitoring and surveillance, those standards always leave wide latitude in their implementation and effectiveness.
The last also the most critical variable lies in the individual country: has it really converted to the “ rule of law”? Is there availability of an independent, well-educated and non-corrupt judiciary? And also the possibility of effective enforcement? The emerging international consensus is that a transparent, predictable and enforceable legal regime underlies successful economic development. Ironically, the Asian crisis is also understood as a “crisis of success”. Facts tell the truth: In Korea, chaebols rank higher than law, and the legal system can not fully promote allocation by the market and restrict bureaucratic will. In Malaysia, worse even, the legal system shifts over 40 years toward supporting greater degree of state allocation of resources and procedural discretion. If law could be bargained for, is there any use of such “international standards”? Of course, individual country cannot prevent and prevail financial crisis merely relying on the “international standards”. A consolidated and comprehensive legal infrastructure is imperative, which should include clear and defined property rights, binding and enforceable contracts, good corporate governance, effective bankruptcy, fair and reasonably predictable tax laws, foreign investment rules, etc. Self-evidently, such various areas of law reform are inextricably interconnected.
Also, the following worry should not be denied as totally groundless: The fact that institutions are increasingly being relied upon to formulate and enforce international standards, may result in the transfer of significant power to undemocratically controlled institutions.
VI. What are the legal issues arising through electronic money?
There are a number of legal issues thrown up by the use of e-money, including those for digital signature and confidentiality, data protection and consumer protection, money laundering and taxation avoidance. Here confidentiality is considered only.
The duty of confidentiality has become very important in the bank and its customers’ relationship from the leading case, Tournier v. National Provincial and Union Bank of England in 1924. Confidential or privacy problem raised on e-money, because information on e-money stored value in a smart card or in a computer, can easily to be copied and recorded, especially on the accountable e-money system. It is no doubt a complete “trail” of expenditures is one of the most powerful surveillance methods known. However, this concern is justified but does not raise any principle. To prove it, here use Professor Alan’s favorite quotations from Douglas J in the US Supreme Court:
“ In a sense a person is defined by the checks he writes. By examining them, the agents get to know his doctors, lawyers, creditors, political allies, social connections, religious affiliations, educational interests, the papers and magazines he reads and so on ad infinitum”.
By this token, the privacy problem of e-money are not different from those of established payment system. Indeed, some of the concerns about e-money arise precisely because of the ability to keep the transactions private.
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