The COVID-19 Pandemic Triggers the Use of Electronic Commerce in Central America
Published: June, 2020
Submission: June, 2020
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Consortium Legal - El Salvador
Confinement and strict measures of social distancing are now part of the reality of millions of people around the world. Given the uncertainty presented by the world panorama in the economic, political, social and cultural fields, the authorities must go one step further to try to mitigate the severe consequences that the COVID-19 pandemic has caused globally.
For several years in Central America, regulations have been issued to promote electronic commerce for the purchase of goods and services. However, its use has not been as dynamic by consumers as it has occurred in more developed markets such as the United States and the European Union. The traditional way of traveling to points of sale has been limited by the declarations of emergency and quarantine imposed in most countries of the Central American region. This has forced suppliers of goods and services to update their technological platforms so that consumers can purchase them. People of all generations have had to resort to e-commerce to avoid going to the supermarket, shopping for fruits and vegetables, pharmacies,
This new reality forces us to review our technological tools, including web pages, applications that offer sales and transportation of goods, including the use of instant messaging applications to determine if they comply with what the regulations of each country establishes when respect, especially in consumer protection issues, as well as to define liability, in the event of non-compliance by some of the parties. This new environment will also generate greater use of the electronic means of payment offered by financial institutions in the region and at the same time force them to review them to seek agility, certainty and, above all, security so that their clients can use them in greater extent.
In Guatemala, electronic commerce has been gaining popularity in recent years, especially after the entry into force of the Law for the Recognition of Communications and Electronic Signatures (Decree 47-2008 of the Congress of the Republic), by means of which the validity of the contract by electronic or digital means has been recognized, as well as the electronic signature (simple or certified). Additionally, during 2011 the Monetary Board of Guatemala, on the recommendation of the Superintendency of Banks, issued the Regulation for the Provision of Mobile Financial Services (Resolution JM-120-2011). Through said Regulation, the provision of financial services was facilitated through digital banking or through applications installed on smart cell phones. By last,
Although it is true, electronic commerce in Guatemala was in full development as mentioned in the previous paragraph, the COVID-19 pandemic has had a positive impact on it. Derived from government-issued locomotion restrictions to prevent and mitigate the spread of COVID-19, electronic commerce has become the norm, meaning most commercial transactions are currently conducted electronically, as Traditional businesses have modified their business models to be able to adapt to electronic commerce and to be able to continue with their operations during the pandemic.
El Salvador currently has a robust regulatory body that configures the minimum legal enabler to achieve the implementation of electronic commerce tools. This set of regulations is made up of: The Electronic Signature Law, Legislative Decree No. 51 of July 5, 2018, which contains the Reforms to the Consumer Protection Law regarding electronic commerce, the Financial Inclusion Law and the Law on Electronic Commerce. Said legal framework must be complemented with regulations such as the Personal Data Protection Law (currently under discussion in the legislative assembly) and technical regulations for the use of electronic signatures, which will develop the minimum requirements for certifiers of signatures and custodians of documents. electronic.
The foregoing has allowed the use of electronic commerce applications and platforms within the Salvadoran market, which generally follow the following scheme:
It has allowed the integration of all, or some of the elements of the previous scheme, allowing the incorporation of new actors within the Salvadoran market, both local and foreign, which have given rise to the birth of the so-called national “geek economy”. This economy must be constantly monitored, since its growth also implies, intrinsically, the growth of key indicators in social development that allow its modernization.
The regulatory framework pending development and approval is crucial to take Salvadoran electronic commerce to the next level. For example, through the Electronic Signature Regulation, certified electronic signature providers and third-party document protection providers may be incorporated, which will allow the remote formalization of more complex operations or that require greater robustness of evidence due to its implications. Additionally, the Personal Data Protection Law will facilitate adaptation to international standards, which, although they are developed jurisprudentially, is not sufficient to clearly guarantee (as would a law in a formal sense), the rights of consumers or users,
It is possible to affirm that the national electronic commerce scheme allows prima facie suppliers to migrate their operation to electronic platforms, which does not entail a migration of their current products or processes to a digital format, but rather a total redesign or a new conception. of products and services that arise and end electronically and remotely. The aforementioned reality was already in its normal cause of implementation by many actors within the market, however, it was dramatically accelerated by the COVID-19 pandemic, generating an encouraging scenario, with new applications, platforms that encourage adoption of digital media and banking of the Salvadoran population, without neglecting the protection of their rights as consumers.
The challenges generated by the health emergency resulting from the COVID-19 pandemic have caused companies that continue to work to focus their efforts on implementing the electronic commerce tools available in Honduran legislation. Payment gateways, electronic wallets and online trading platforms have positioned themselves as an alternative to meet different operational needs. This has boosted the financial technology sector (“Fintech”), which has shown sustained growth in recent years thanks to the support of the Financial Innovation Table promoted by the Central Bank of Honduras and the National Commission of Banks and Insurance.
Honduras has the Electronic Commerce Law, Decree No. 149-2014, in accordance with the recommendations of the Model Law of the United Nations Commission for International Trade Law. This regulates all kinds of information in the form of a data message, used in the context of commercial activities . For their part, electronic wallets have their own formal regulation, in the Regulation for the Authorization and Operation of Non-Banking Institutions that Provide Payment Services Using Electronic Money, Agreement No. 01/2016 of the Central Bank of Honduras.
Contracting by electronic means has become increasingly important and necessary due to the series of current restrictions on circulation and operations. The Law on Electronic Signatures was approved from 2013 through Decree No. 149-2013, however, it was until the end of 2018 that the first Private Certification Services Provider was authorized. In addition to this, in order to facilitate the use of technologies and increase the clarity in their adoption, the National Congress approved the Law on Assistance to the Productive Sector and Workers in the Face of the Effects of the Pandemic Provoked by COVID-19 (Relief Law), Decree No. 33-2020, which, among other aspects, reforms the Electronic Signatures Law, and establishes measures for the implementation of electronic commerce mechanisms. However, the issuance of regulations for the Aid Law is still pending, which will provide greater clarity to the reforms enacted.
On the other hand, both the Civil Code and the Commercial Code contemplate the possibility that contracting can be carried out without the contracting parties being physically present in the same place. Likewise, article 12 of the Law on Electronic Commerce already recognizes and gives validity to contracts concluded by electronic means.
Although the optimal would be to have more rigorous regulations on data protection in the future and that include other service areas of financial technology companies, the current regulations have managed to meet the needs of electronic commerce activities during the COVID-19 pandemic and innovations that continue to unfold.
Currently, Nicaragua has an Electronic Signature Law approved by the Legislative Power in August 2010 and its regulations approved in October 2011, by which the certified electronic signature is regulated, granting it the same legal value as the handwritten signature, with the exception of not using it in acts of family law, very personal acts, provisions for cause of death and acts that through the law of the matter or agreements between the parties require the use of handwritten signature. Although, it was established that this law was effective as of its publication, to date, the designated governing entity has not begun to operate in accordance with the powers granted by this law; therefore, the electronic signature is not available for the execution of commercial activities in general.
Subsequently, in May 2015, the Superintendency of Banks and Other Financial Institutions ("SIBOIF") approved the rule on pre-printed signature in contracts containing financial operations, in order that Banks, financial companies, non-bank card issuers Credit and insurance companies will be able to use the pre-printed signature of the institution's legal representative in a series of contracts, with the aim of facilitating the formalization of their operations. This standard has since been applied by financial institutions, this being the only sector benefiting from the use of the electronically printed signature.
Given this regulatory framework and the lack of application of the electronic signature law, the COVID-19 pandemic has made different economic sectors aware of the need for the prompt application of the law and the electronic signature regulation, to avoid further consequences. in the country's economy. On the other hand, due to the voluntary confinement of people, companies have increased the online sales service, allowing consumers to access services or products from a third party or their own mobile application. As part of this reinvention, Banks have facilitated the payment of services to their affiliated businesses through their technological payment platforms, thus increasing the options that consumers have to make payments to third parties and other financial operations.
The approval of new regulations and the increase in technological practices for the advancement of electronic commerce in Nicaragua would be very timely, allowing the region's economy to be strengthened.
The use of payment gateways by merchants in order to make secure payment mechanisms available to their customers, whether through the use of smart phones, credit cards or other means, as well as the possibility of signing and formalizing contracts through electronic documents, digital signatures and other electronic mechanisms, they have become more relevant under the COVID-19 pandemic, by allowing the dynamics of economic and commercial life to continue, allowing social distancing and reducing the risk of spread of the virus, as well as the security and streamlining of trade operations in the field of electronic commerce.
Given the widespread use of the internet and new ways to carry out different online transactions, new trends in business management have been generated, from which Costa Rica has definitely not escaped. It was in response to these changes and as a mechanism for adaptation to new technologies, that over the years, different standards have been approved that regulate and allow the conduct of commercial acts by electronic means. An example of this is the approval and implementation of Law 8454, the Law on Certificates, Digital Signatures and Electronic Documents.
This law recognizes the equivalence of the manifestations or declarations expressed by electronic means, with respect to those that appear in physical means, endowing the same evidentiary force to both. It introduces the figures of the “digital signature” and the “digital certificate”, as mechanisms for the subscription of electronic documents, which generally allow the link between the signatory and the electronic document.
Likewise, and in pursuit of the defense of the rights of consumers who contract the purchase of goods and services within the framework of electronic commerce, it was included in 2017, in the Regulation of the Law for the Promotion of Competition and Effective Defense Consumer No. 7472, a chapter intended solely for Electronic Commerce, which regulates issues such as advertising, online sales, transparency and information management, among other relevant guidelines for the proper development of electronic commerce in Costa Rica, without detriment of the other rights set forth in the regulations that regulate the general rights and obligations of merchants and consumers.
Now, in relation to electronic payment systems, there is the National System of Electronic Payments (SINPE) provided through the Central Bank of Costa Rica and regulated by the Regulation of the National System of Electronic Payments (SINPE Regulation). This regulation regulates the organization and operation of the National Payment System (SINPE). In 2018, said regulation included the possibility that legal entities other than supervised financial entities, among others, carry out operations within SINPE as payment service providers  , however, the practical implementation of this authorization, is still pending execution.
Finally, there are private payment gateways, promoted and managed by Fintech companies. It is important to highlight that there is an important trend towards the development and commercialization of these payment gateways, an activity that is supervised and regulated from the perspective of the prevention of money laundering and financing of terrorism.
The countries of the Central American region have had regulatory frameworks for some years that enable the use of electronic mechanisms for contracting services and purchasing goods. Although some of these laws require complementary regulations that contribute to a better and more solid development of Electronic Commerce, most of them lay sufficient foundations for the implementation of such mechanisms in current markets.
The use of electronic means in the context of the crisis of the COVID-19 pandemic, provides mechanisms for the conduct of commercial activities by allowing, among other things: the signing and formalization of contracts by electronic means, promoting non-commercial links face-to-face, provide new opportunities to access parts and markets previously considered remote, among other advantages. These benefits must be accompanied by solid regulatory frameworks in the field of consumer rights, which provide secure means for making payments for the transactions agreed between the parties, facilitate economic resources to continue circulating, and thus play a fundamental role in promoting of trade and economic development both domestically and internationally.
It is for this reason that the national regulators, as well as the banks and entities that offer payment methods, have today more than ever, the challenge of quickly adapting to the new reality that the COVID-19 pandemic has generated, and using all the necessary mechanisms that, to the extent possible, allow the economic and financial stability of each jurisdiction to be maintained. The call that some sectors have made for many years regarding the digitization of different industries, is today a real and urgent need that must be addressed very efficiently and quickly to avoid further damage to national economies due to the global health emergency. .
 It is worth highlighting its article 38, subsection C), which contemplates that “ by electronic means all kinds of acts, contracts and any other type of legal business may be held whenever it is possible to demonstrate in a reliable manner the will of the parts of conducting legal business by that means. The consent of the parties is tested by exchanging emails, videos, voice recordings, exchanging text messages, electronic acceptance of standardized contracts or by sending an electronic self-portrait holding the identity document visibly next to the face of the signatory taken through the corresponding application prior to sending the respective application or form ”
 Payment service providers: national legal entity that processes payments and collections as support for own or third party commercial activities
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