CONSUMER PROTECTION IN E-COMMERCE TRANSACTION

CONTRACTS BASED ON INTERNATIONAL TRADE LAW

ABSTRACT
In the current economic development, we have started to leave the conventional
ways, we are starting to step on electronic transactions and are starting to be used
often at this time, sometimes there are violations in the contract agreement
between the parties in the transaction, legal protection for the parties is still
lacking, Therefore, it is necessary to have clear legal protection.
Keywords: Dispute Resolution, E-Commerce transactions, International Trade
Law.

INTRODUCTION
At the present time the development of Information Technology, has resulted in
various types of services (features) of existing telecommunications facilities, as
well as increasingly sophisticated information technology products that are able to
integrate all information media. But ironically, the dynamics of Indonesian
society, which is still just growing and developing towards an industrial society
and an information society, still seem foreign to accompany the development of
existing technology. With the ability of information technology and access
networks that are growing very rapidly and in the end, commercial transactions
are carried out in the communication network. Public networks have the
advantage of cost and time efficiency.
The role of Electronic Commerce in international trade is currently
developing quite rapidly, this is because it is very efficient and effective so that
the calculation of operational costs can be reduced. In addition, thanks to
technological support, it can also be done technically very easily and practically.
An integrated network system that operates in an on-line networking management
system accelerates the flow of transactions and asset circulation for intra-business
actors on a global scale across territorial borders (Jurisdiction). However, there are
also frequent frauds committed by irresponsible people such as using stolen credit
cards (carding), they use other people's credit cards to make transactions, this
results in losses to many parties, such as the company that owns the merchandise,
the bank that issued the credit card, and most importantly the name of the
Indonesian nation which has become bad because it is accused of being a hotbed
of cyber thieves. If we look at articles 1320 BW and 1338 (1) BW regarding the
legal terms of the agreement and the principle of consensuality, it can be drawn
substantially to be able to accommodate and adopt the existing substance in the
pattern of electronic commerce actors to become legally enforceable. But also
from a juridical point of view there are some essential things regarding the rights
and obligations of the interrelated parties. If we look at articles 1320 BW and
1338 (1) BW regarding the legal terms of the agreement and the principle of
consensuality, it can be drawn substantially to be able to accommodate and adopt
the existing substance in the pattern of electronic commerce actors to become
legally enforceable. But also from a juridical point of view there are some
essential things regarding the rights and obligations of the interrelated parties. If
we look at articles 1320 BW and 1338 (1) BW regarding the legal terms of the
agreement and the principle of consensuality, it can be drawn substantially to be
able to accommodate and adopt the existing substance in the pattern of electronic
commerce actors to become legally enforceable. But also from a juridical point of
view, there are some essential things regarding the rights and obligations of the
interrelated parties.
The unclear legal relationship between e-commerce actors, of which
one of them acts as a consumer, leads to the unprotected condition of consumers.
It is appropriate that consumers, especially the last consumers as the biggest target
in e-commerce transactions, receive protection from various harmful business
behavior of producers. There are several problems with consumers that can be
highlighted due to unclear legal relationships in e-commerce transactions. First,
regarding the use of standard clauses. As we know, in most transactions in
cyberspace, consumers have no other choice but to click on the icon which
indicates their agreement with what the producer has stated on their website,
without a position that is fair enough for consumers to determine the contents of
the clause. Second, how to resolve disputes that arise. The parties may be in the
jurisdiction of the courts in different countries. While the debate on jurisdiction to
be taken up when resolving disputes in e-commerce is likely to be quite long,
during the determination period when it occurs and where the e-commerce
agreement takes place, there is still no consensus. In addition, there is also a need
for a special dispute resolution system and mechanism for effective and
inexpensive e-commerce transactions. This is also related to the privacy of
consumers. An IT practitioner Arianto Mukti Wibowo once stated that the use of
cookies on some browsers such as Internet Explorer from Microsoft has enabled
the system on the website to recognize customers, and even the shopping patterns
that the customer does without the customer realizing it. For example, for
consumers who have purchased several books on amazon.com, the site will try to
create a pattern to identify the type/topic of the customer's favorite books by
placing cookies on the customer's hard-drive. When the customer opens the
amazon site, the amazon system will offer the type/topic that is estimated to be the
customer's favorite. Maybe for some people, the practice as mentioned above is
considered to help them in searching for books according to their favorite topics.
But actually, this is where the privacy intrusion lies. A person's habits and
hobbies, even very personal things, may be exploited. For example, for consumers
who have purchased several books on amazon.com, the site will try to create a
pattern to identify the type/topic of the customer's favorite books by placing
cookies on the customer's hard-drive. When the customer opens the amazon site,
the amazon system will offer the type/topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to
help them in searching for books according to their favorite topics. But actually,
this is where the privacy intrusion lies. A person's habits and hobbies, even very
personal things, may be exploited. For example, for consumers who have made
several book purchases on amazon.com, the site will try to create a pattern to
identify the type/topic of the customer's favorite books by placing cookies on the
customer's hard-drive. When the customer opens the amazon site, the amazon
system will offer the type/topic that is estimated to be the customer's favorite.
Maybe for some people, the practice as mentioned above is considered to help
them in searching for books according to their favorite topics. But actually, this is
where the privacy intrusion lies. A person's habits and hobbies, even very personal
things, may be exploited. the site will try to make a pattern to identify the
type/topic of the customer's favorite books by putting cookies into the customer's
hard-drive. When the customer opens the amazon site, the amazon system will
offer the type/topic that is estimated to be the customer's favorite. Maybe for some
people, the practice as mentioned above is considered to help them in searching
for books according to their favorite topics. But actually, this is where the privacy
intrusion lies. A person's habits and hobbies, even very personal things, may be
exploited. the site will try to make a pattern to identify the type/topic of the
customer's favorite books by putting cookies into the customer's hard-drive. When
the customer opens the amazon site, the amazon system will offer the type/topic
that is estimated to be the customer's favorite. Maybe for some people, the
practice as mentioned above is considered to help them in searching for books
according to their favorite topics. But actually, this is where the privacy intrusion
lies. A person's habits and hobbies, even very personal things, may be exploited.
the amazon system will offer the type / topic that is estimated to be the customer's
favorite. Maybe for some people, the practice as mentioned above is considered to
help them in searching for books according to their favorite topics. But actually,
this is where the privacy intrusion lies. A person's habits and hobbies, even very
personal things, may be exploited. the amazon system will offer the type / topic
that is estimated to be the customer's favorite. Maybe for some people, the
practice as mentioned above is considered to help them in searching for books
according to their favorite topics. But actually, this is where the privacy intrusion
lies. A person's habits and hobbies, even very personal things, may be exploited.

RESEARCH METHODS
The type of research used in this research is the type of research that is in
accordance with the character and characteristics of legal science, namely
normative juridical research through library research, namely research on legal
materials related to existing problems. The problem approach in this study uses a
conceptual approach and a statute approach. The Conceptual Approach is a study
of the opinions of experts and theories from legal experts in the literature as a
supporting basis. The Statute Approach is carried out by reviewing and examining
the legal norms contained in the statutory provisions relating to the theme being
discussed. Using laws and regulations, namely: the Civil Code, Law no. 11 of
2008 concerning Information and Economic Transactions, the Rome United
Nations Conventions in Contracts for International Sale of Goods (UNCISG)
1980 and 1986 and the United Nations Convention on the Recogniton and
enforcement Arbiral Award (the New York Convention). Using several concepts,
namely: E-Commerce, International Trade, Freedom of Contract, Principles of
Contracting and Consumer Protection
 DISCUSSION
The contract is basically a binding law and has legal consequences for the parties.
Therefore, the following discussion is more appropriate with the term contract law
(Michael D. Bayles, 1987 and Lawrence M. Friedman, 2001). In English, contract
law is a translation of contract of law, while in Dutch it is overeenscomstrecht.
Friedman (2001) defines contract law as: "The legal instrument that regulates
certain aspects of the market and regulates certain types of agreements"
Several other definitions of contract law, generally do not address the
stages the contract is made and executed. The Indonesian Encyclopedia (in Salim,
HS, 2003) examines it from the aspect of the scope of its regulation, namely the
approval and ties of legal citizens, as stated in Article 1348 of the Civil Code. It
seems that this definition equates the meaning of a contract (agreement) with an
agreement, even though they are different. The contract (agreement) is one source
of the engagement, while the agreement is one of the conditions for the validity of
the contract, as regulated in Article 1320 of the Civil Code (KUH Perdata).
It is more appropriate if we base it on the opinion of Van Dunne
(1990), a Dutch civil law expert, who not only examines it from a purely
contractual perspective, but also pays attention to the previous stages. What is
meant by the previous stages are the pre-contractual stage, which is the offer and
acceptance stage, and the post-contractual stage, which is the implementation of
the agreement. Legal relationship is a relationship that has legal consequences.
Legal consequences, namely the emergence of rights and obligations. Rights are
in the form of enjoyment, while obligations are in the form of burdens.
From the opinions and definitions of contract law above, the definition
of contract law is as follows:
"The whole of the legal rules governing legal relations between two or
more parties based on an agreement to cause legal consequences"
Thus, the elements contained in contract law are as follows:
1. The existence of legal rules
The rules in contract law are divided into 2 (two) parts: written and
unwritten. A written contract law contract is a contract of legal rules
contained in laws and regulations, treaties, and jurisprudence. While the
rules of unwritten contract law are legal rules that arise, grow, and live in
society (a concept derived from customary law).
2. There is a Legal Subject
The subject of law in other terms is rechtsperson, which is defined as a
supporter of rights and obligations. The legal subjects in contract law are
creditors and debtors. The creditor is the person who owes the debt, while
the debtor is the person who owes the debt.
3. Presence of Achievement (Object of Law)
Achievement is the right of the creditor and becomes an obligation for the
debtor. Achievements according to Article 1234 of the Civil Code consist of
4 (four) things:
a. give something b. do something, and c. do nothing
4. Agree
 In Article 1320 of the Civil Code, there are 4 (four) conditions for the
validity of an agreement. One of them is an agreement (consensus). An
agreement is a conformity statement of will between the parties.
5. Because of law
Every agreement made by the parties will have legal consequences. The
legal consequence is the emergence of rights and obligations. A right is a
pleasure and an obligation is a burden.
Principle of Freedom of Contract (Contractvrijheid Beginselen)
There are many opinions of legal experts about the principles in an
agreement, but basically it aims to achieve legal certainty, legal order, and justice
based on the principle of consensualism (related to the birth of an agreement).
There are 5 (five) important principles in an agreement, namely:
1. The principle of freedom of contract, as the results of the analysis of Article
1338 paragraph (1) of the Civil Code, which reads: "All agreements made
legally apply as law for those who make them". The principle of freedom of
contract gives the parties the freedom to:
a. make or not make an agreement
b. make an agreement with anyone
c. determine the contents of the agreement with anyone
d. determine the form of the agreement, namely written or oral.
2. The principle of consensualism, as stated in Article 1320 paragraph (1) of
the Civil Code. In this article it is determined that one of the conditions for
the validity of the agreement, namely the agreement of both parties. The
principle of consensualism is generally not held formally, but it is sufficient
with the agreement of both parties. Here the agreement is the agreement
between the will and the statement made by both parties.
3. The principle of Pacta Sunt Servanda, is the principle of legal certainty as a
result of the agreement. This principle can be concluded from Article 1338
paragraph (1) of the Civil Code which reads: "Agreements made legally
valid as law." In addition, this principle also states that other parties (judges
or third parties) must respect and should not intervene substance of the
contract made by the parties, as befits a law
4. Good Faith Principle (Goede Trouw) This principle can be concluded in
Article 1338 paragraph (3) of the Civil Code which reads: "Agreements
must be carried out in good faith". The principle of good faith is the
principle of the parties, namely the creditor and debtor must carry out the
substance of the contract based on firm trust or confidence or good will
from the parties. The principle of good faith is divided into 2 (two): relative
good faith, where people pay attention to the real behavior of the person or
subject. While absolute good faith, the judgment lies in common sense and
fairness, and the assessment of the situation is made with objective
measures (impartial judgments) according to objective norms.
5. Principle of Personality (Personality) This principle is the principle that
determines that a person will perform and or make a contract only for
individual interests, as in Article 1315 of the Civil Code which reads: "In
general, a person cannot enter into an engagement or agreement other than
 for himself". and Article 1340 of the Civil Code which states that: "The
agreement is only valid between the parties who make it". However, there
are exceptions to this provision as introduced in Article 1317 of the Civil
Code, which states: "An agreement can also be entered into for the benefit
of a third party, if an agreement made for oneself, or a gift to another
person, contains such a condition". This article constructs that a person can
enter into an agreement for the benefit of a third party.
Freedom of contract is an "individual freedom", the parties are given
the freedom to regulate themselves based on their interests where the role of the
Court is only to carry out. Fair freedom of contact is strongly supported for the
achievement of goals that emphasize the need for stability, certainty and
consistency. There are 3 aspects of value to determine when a contract is unfair.
1. There is an imbalance in the "Power in Bargaining". Contracts that are
affected by an imbalance in bargaining power are handing over an
excessive advantage to one of the parties. An imbalance of bargaining
position can also occur where unfair benefits (profits) are carried out
from parties who do not have high education or who have weak minds or
parties who are financially inadequate. Everyone should not take
advantage (benefit) from an unfair contract made in a situation where the
other party is in a state of economic and social pressure. An imbalance of
bargaining position can also occur where unfair benefits (profits) are
carried out from parties who do not have high education or who have
weak minds or parties who are financially inadequate. Everyone should
not take advantage (benefit) from an unfair contract made in a situation
where the other party is in a state of economic and social pressure.
2. Contract Form – Standard Contract
Under standard contracts, the weak party who needs goods or services is
often not in a position to study with a view to getting better terms. The
sovereignty of the parties is neglected. There is a need for the role of
legislators and courts to regulate some contracts that compromise the
basic principles of freedom of contract.
3. Public order
This is the 3rd reason that “unfair contracts” are legally and legally
questioned. There are no precise provisions regarding the meaning of
"Public Order". Matters, for reasons of public order, which can invalidate
a contract can be divided into 5 (five) groups, namely: with respect to
objects that are invalid by general law or regulations; objects that are
harmful to good governance both in the field of domestic and foreign
relations; that interferes with a judicial process that is already going well;
harmful to marriage and morals; and economically against the public
interest.
Electronic Commerce (Electronic Commerce), by experts and
business people trying to formulate a definition from the terminology of E-
Commerce (Electronic Commerce). In general, e-commerce can be defined as all
forms of trade/commerce transactions of goods or services (trade of goods and
services) using electronic media. It is clear, apart from what has been mentioned
above, that such commerce is part of business activities ("e-commerce is a part of
e-business".)1
The legality of a contract or agreement in Electronic Commerce is a
relatively new juridical phenomenon for Indonesia. In a legal perspective, an
engagement is a legal relationship between legal subjects in which one party is
obliged for an achievement while the other party is entitled to that achievement.
Based on article 1233 of the Criminal Code, the existence of an engagement is
born because of an agreement or because of a law. Furthermore, in article 1320 of
the Criminal Code. it is explained that the legal terms of an agreement include the
Subjective Terms and the Objective Terms. Subjective requirements include (1)
an agreement, and (2) the ability (to act in law) to make an engagement. While the
objective requirements include (3) a certain thing (the object must be clear),
In Law No. 11 of 2008 concerning Information and Economic
Transactions, it is also explained that Electronic Transactions are legal acts carried
out using computers, computer networks and or other electronic media, so that
jurisdictions in Indonesia already have a strong legal basis. Later the existing law
enforcement will apply it in the field. When we talk about e-commerce
transactions, of course, the basis is a contract, in English law if there is a contract
with a foreign element, then the law used in resolving disputes is the right law, In
Dicey's view, "the term proper law of cantract means the law or laws by which the
parties intended, or may fairly be presumed to have intended, the contract to be
governed”2. This is known as a subjective view and the emphasis is of course on
the intentions of the parties. There is also another view regarding electronic
transactions, namely an objective view supported by Lord Denning. He stated that
“the proper law of the contract depends not so much on the place when it is made,
nor even on the intention of the parties on the places where it is to be performed
but on the place with which it has the most substantial connections". Boisssvain v
Weil (1949). From the view above regarding the subjective and objective
elements of a contract, we can conclude that the completion of the contract
agreement between the two parties in finding a place of settlement depends on the
initial agreement of each party.
If in the future a dispute arises regarding the contract, it is important to
know which law (law of which country) will apply to the contract. A good e-
commerce contract will make it explicit which law applies to that contract, but
sometimes this choice of law is not stated. In general, in determining which law
will apply, it is based on the principle of which country's jurisdiction has the
closest relationship and has a close relationship with the contract. The place where
a contract takes place is a matter that should be considered in determining which
law applies to the contract, although this is not an important factor. A contract
made using telecommunications facilities that are instantaneous can be considered
to be under the jurisdiction of the place where the offeror receives acceptance.
Meanwhile, if the postal acceptance principle is applied, the place where the
acceptance occurs is the place where the acceptance is sent which will determine
1
www. http://www.geocities.com/amiwibowo/resource/ Hukumpdf
2
Arthur Lewis, Fundamentals of business law, Introduction to Business Law, 2009 Issue I,
Nusamedia. Pg 488
which law applies to the contract. To prevent uncertainty of which law will apply
to a contract, in making a contract, whether in the form of an offer or acceptance,
the parties should explain where, when the contract is deemed to have occurred
and which law will apply to the contract. then the place where the acceptance
occurs is the place where the acceptance is sent which will determine which law
applies to the contract. To prevent uncertainty of which law will apply to a
contract, in making a contract, whether in the form of an offer or acceptance, the
parties should explain where, when the contract is deemed to have occurred and
which law will apply to the contract. then the place where the acceptance occurs is
the place where the acceptance is sent which will determine which law applies to
the contract. To prevent uncertainty of which law will apply to a contract, in
making a contract, whether in the form of an offer or acceptance, the parties
should explain where, when the contract is deemed to have occurred and which
law will apply to the contract.
The problem of law enforcement (enforcement) for the settlement of a
dispute is a very important thing to consider in a dispute that has an international
aspect. There is a possibility that a decision from a court in one country cannot be
enforced in another country. This is due to the problem of the sovereignty of a
country where a foreign court decision in principle cannot be executed if the
execution is outside the jurisdiction of that country. The problems mentioned
above can be anticipated by choosing an arbitration institution as the preferred
forum for dispute resolution for an international contract. The choice of arbitration
as a dispute resolution forum will bring legal certainty to the parties in the event
of a dispute. Because the arbitration decision can be enforced in other countries,
so that it will bring peace to the parties. The enforcement of article 2 of the United
Nations Convention on the Recogniton and enforcement of the Arbiral Award (the
New York Convention) can be carried out on the decision of the arbitrator that is
outside the jurisdiction of a country/foreign arbitration.

CONCLUSION
Activities in e-commerce in general can still be categorized as ordinary
trading/commerce actions, although there are significant things that distinguish
them, such as electronic media that replaces paper-based transactions. It can be
said that some of the existing legal regulations are sufficient, either by interpreting
analogically to the existing actions in e-commerce (against regulations that do not
yet exist) or by carrying out extensive interpretations by imposing legal
regulations on things that are essentially are the same (eg electricity and electronic
data).

REFERENCES
Arrianto Mukti Wibowo, Digital signature & digital certificate: What is it? 1998
This article appeared in the June 1998 issue of Infocomputer Internet
Arthur Lewis, Fundamentals of business law, Introduction to Business Law, 2009
Issue I, Nusamedia.
Mertokusumo, Sudikno, Indonesian Civil Procedure Law, fourth edition, PT
Liberty Yogyakarta 1993
Law Number 8 of 1997 concerning Regulations and Legislation, Journal of
Business Law, Business Law Development Foundation, Vol 1 of 1997
Law No. 11 of 2008 concerning Information and Electronic Transactions