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Draft Final Report E-Commerce in Bangladesh: Status, Potential and Constraints Najmul Hossain December 2000 A report prepared for JOBS/IRIS Program of USAID. The author gratefully acknowledges comments received from Thierry Van Bastelaer, Catherine Mann, Dewan Alamgir, Asif Khan, Abu Saeed Khan, Tahmina Begum, Shabnam Nadiya and Tonmoy Bashar. The views and analyses in the paper do not necessarily reflect the official position of the IRIS Center, the University of Maryland or that of USAID. E-Commerce in Bangladesh: Status, Potential and Constraints ACRONYMS ASM Asian Sources Media Group B2B Business-to-Business B2C Business-to-Consumers B2G Business-to-Government BB Bangladesank BGMEA Bangladesh Garment Manufacturers and Exporters Association BTRC Bangladesh Telecommunications Regulatory Commission BTTB Bangladesh Telegraph and Telephone Board CS ContrScytstem DDN Digital Data Network DFID Department For International Development DI Dnternational DSL Digital Subscribers Line e-commerce ElectronCommerce EDF Export Development Fund EFT Electronic Fund Transfer e-mail Electronicmail e-market ElectMnrket FDI Foreign Direct Investment GOB Government of Bangladesh GSP Generalized System of Preferences IDA International Development Association IOC International Oil Companies IPO Import Policy Order IPR Intellectual Property Rights IRIS Center for Institutional Reform and the Informal Sector at the University of Maryland ISO InternatialtandaOsrganization ISP Internet Service Provider IT Information Technology ITU International Telecommunications Union JOBS Job Opportunities and Business Support L/C Letter of Credit LCA Letter of Credit Authorization LMDS Local Multi-channel Distribution System MMDS Multi-channel, Multi-point Distribution System MOPT Ministry of Posts and Telecommunications NIP New Industrial Policy OECD Organization for Economic Cooperation and Development OSP OutsiPlant PATC Public Administration Training Center PC PersoCalmputer PDH Plesiochronous igl ierarchy PIAG Policy Implementation and Analysis Group PSI Pre-shipment Inspection PTT Post, Telegraph and Telephone QS Qualitandards RFP Request For Proposal RIP Revised Industrial Policy RMG Readymade Garments SDH Synchronous Digital Hierarchy SME Small and Medium Enterprises Taka The currency of Bangladesh. US$ 1=Taka 54 approximately TRIP Trade-related Intellectual Property UNDP United Nations Development Programme UNICEF United Nations Children’s Fund UNIDO United Nations Industrial Development Organization USAID United States Agency for International Development VoIP Voice over Internet Protocol VSAT Very Small Aperture Terminal WTO World Trade Organization E-Commerce in Bangladesh: Status, Potential and Constraints TABLE OF CONTENTS ExecSuumemary I Intr1.uction 1 1.1 The Role of E-Commerce in the Era of Globalization 1 1.2 Objective of the Study 2 1.3 Organization of the Report 2 2. The Existing Situation and Potential of E-Commerce in Bangladesh 4 2.1 Business-to-Consumer (B2C) Scenarios 4 2.2 Business-to-Business (B2B) Scenarios 5 2.3Business-to-Gove(mcen)trios7 Sup3pFrrmeework 9 3.1 The Regulatory and Legal Environment 9 3.2 Telecommunications: An Integral Part of E-Commerce 14 3.3 Financing and Banking Mechanism 19 3.4Humpaial 22 3.5 Governance, Policy Implementation Constraints 23 4. Conclusions and Recommendations 26 4.1 Legal, Regulatory and Institutional Constraints 27 4.2Recommendations 27 Reference Annex I Regulatory and Policy Aspects of E-Commerce LIST OF BOXES Ee-faftot1:Box Box 2: E-commerce in the RMG Sector 5 Box 3: E-commerce in the Oil and Gas Sector 7 Box 4: Acts and Laws Related to Consumer Protection 14 Box 5: Independence of the Regulator 16 Box 6: VoIP Application: An Illustration 18 Box 7: Letter of Credit Mechanism 20 Box A1: Objectives of the Industrial Policy 1999 Annex I Box A2: E-Commerce in the Developing World Annex I LIST OF TABLES Table 3.1: Legislation Relating to Trade 11 Table 3.2: The Hidden Cost of Service 24 Table A1: List of Documents Required for Import, and the Relevant Authorities Annex I Table A2: List of Documents Required for Export, and the Relevant Authorities Annex I Table A3: Certificates Required for Export (by Item) Annex I Table A4: Ministerial Responsibility for Trade and Trade-related Issues Annex I LIST OF FIGURES AND GRAPHS Figure 1: The Three Dimensions of E-Commerce 4 Figure 2: The Magic Triangle of E-Commerce 9 Graph 1: Telecom Indicators in South-Asia in 2000 15 E-Commerce in Bangladesh: Status, Potential and Constraints Page I - - E-Commerce in Bangladesh: Status, Potential and Constraints Executive Summary The Internet has opened up a new horizon for trade and commerce, namely electronic commerce (e-commerce). E-commerce entails the use of the Internet in the marketing, identification, payment and delivery of goods and services. This paper highlights the status, statutes, potential and constraints to e-commerce development in Bangladesh. Both the statutory laws as well as the challenges in implementing them are discussed. Major legal, regulatory and institutional constraints to e- commerce are identified. The paper also lists specific policy changes aimed at bringing improvements to the legal and regulatory environment affecting e-commerce. Dimensions of E-Commerce The three dimensions of e-commerce are Business-to-Consumers (B2C), Business-to- Business (B2B) and Business-to-Government (B2G). B2C e-commerce is unlikely to be of much use in the near future in Bangladesh because of low per capita income, a weak infrustructural and legal environment, lack of trust between business and consumers. B2C for cross border trade is also limited by the factors suggested for the domestic front. In addition, non-availability of international credit cards, foreign currency remittance restrictions, delays and informal payments at customs clearance even for small value and quantity items will discourage B2C. The B2B application already exists in the export sector of Bangladesh, especially in the Ready Made Garments (RMG) industry. RMG has the lion’s share of the export earnings in Bangladesh. The RMG sector has begun to use the Internet, and its dependence on e- commerce is likely to grow in the coming years. The Internet would enable them to seek information about potential buyers as well as raw material suppliers. Similarly the practice of posting a website by individual producers ha s begun. However, if Bangladeshi producers are unable to accommodate electronic transfer of payment and other facets of e-commerce, the business opportunity will move on to countries that have developed such systems. B2G e-commerce is possible in Bangladesh, but on a limited scale at this stage. The government is a major buyer of goods and servic es from the private sector. Typically, the government procures goods and services by inviting tenders. The availability of the RFP and other relevant documents on-line provides an alternate choice. Transactions involving information collection, obtaining various governm ental forms, registering activities can also be conducted on-line. This will reduce time costs, corruption and the necessity of going through lengthy bureaucratic procedures as well as increasing transparency. Government Legislation An overview of the government trade and industrial policies as well as various acts and statutes affecting e-commerce has been presented in this paper. For e-commerce to E-Commerce in Bangladesh: Status, Potential and Constraints Page II - - develop requires an enabling environment that would ensure easy and quick movement of inputs as well as goods and services within the country and cross border trade. Two major government documents reflect the mood of trade and investment policy directions to be pursued in the medium term. These are the Five-Year Plans and the Industrial Policy. The Foreign Private Investment (Promotion and Protection) Act of 1980 guarantees legal protection to foreign investors against natio nalization and also indemnifies them against losses due to civil unrest. In the area of foreign trade, the legal framework is primarily governed by three legislative Acts: The Im ports and Exports (Control) Act, 1950; The Customs Act, 1969; and The Foreign Exchange (Regulation) Act, 1947. Revisions and updates of these Acts are made periodically. The Export Policy 1997-2002 aims at promoting exports in the regional and international markets. The recently passed Intellectual Property Rights (IPR) bill of Bangladesh concentrates on software copyright protection. However, e- commerce related copyright protection is not covered in the new IPR. According to the Evidence Act, 1881, a physical signature is necessary to make any contract legal. This makes electronic contracts void under Bangladeshi law. Contract Law in Bangladesh is governed by the Contract Act 1872. Cross border contracts are legal, but a physical signature is necessary to validate the contract. Legislation that legalizes digital certificates, electronic contracts, also needs to be enacted to promote e-commerce. Two Acts play an important role in dispute settlement -- the Arbitration Act 1940 and the Money Loan Court Act 1990. The Arbitration Ac t governs the settlement of any disputes arising from business transactions. The Money Loan Court (Artha Rin Adalat) is an independent judicial body established under the Money Loan Court Act 1990 and the Money Loan Court Regulation 1990 to recover public money loaned to individuals through public sector financial institutions. However, the Money Loan Courts are overburdened with the enormous number of cases they have to deal with. Although no laws that directly provide for Consumer Protection exist in Bangladesh, certain laws, if implemented appropriately, can play a si gnificant role in Consumer Protection. Two Articles in the Constitution in Bangladesh -- Ar ticle 15 and Article 18 – state broad principles regarding consumer protection. Article 18 specif ically includes raising the level of nutrition and improvement of public health among the stat es primary duties. Article 15 can be interpreted as making the provision of basic necessities a fundamental responsibility of the state. Infrastructure: Status and Issues Internet services are directly dependent on the telecommunication infrastructure of the country. The Bangladeshi telecommunication sector is characterized by poor level of penetration, high cost to access and a lengthy waiting period. Although the Bangladesh Telegraph and Telephone Board (BTTB) continues to be a monopoly in providing basic telephone connections, the private sector’s involvement in cellular phones and as Internet Service Providers (ISP) have been allowed. Despite the need for easy and affordable access to Internet services, BTTB’s pricing and regulatory strategy on ISPs are restrictive. E-Commerce in Bangladesh: Status, Potential and Constraints Page III - - BTTB’s decision to itself offer Internet services since 1999 has caused concerns among private providers as they are exempted from paying fees and royalties to the government. BTTB’s monopoly over long distance and international voice traffic remains protected by the National Telecommunications Policy (NTP98) until 2000 and 2010 respectively. This has been a consistent impediment for the growth of e-commerce. A proven important catalyst in the promotion of e-commerce, Voice over In ternet Protocol (VoIP) is prohibited in Bangladesh. Demand for VoIP has however, been increasing and the industry has been urging the government to liberalize the internat ional traffic. The NTP98, enacted in 1998, suggests establishing an independent regulator, the Bangladesh Telecommunications Regulatory Commission (BTRC). However, BTRC is yet to be operational. Financing: Status and Issues Easy access to credit and a well-developed financing mechanism is essential for Bangladesh to compete in the highly competitive export market. There are three types of export financing in Bangladesh: pre-shipment financing in local currency by commercial banks; pre-shipment financing in foreign currency by commercial banks through the Export Development Fund (EDF); and back-to-back letter of credit (L/C) facilities. Studies have reported that lack of access to trade financing, caused by a weak commercial banking system and foreign exchange scarcity, has constrained Bangladesh’s export expansion. The insistence by commercial banks on the use of L/Cs for export financing and the existence of interest rate ceilings on export loans has had negative effects. Indirect exporters are forced to give inter-firm credit fo r their sales of indirect export items to direct exporters because they do not have the option of sight or advance payments from direct exporters. Restriction on issuance of international credit cards prevails. Lack of internationally accepted credit card facilities sends wrong si gnals to their foreign counterparts about the inability of Bangladeshi businessmen to make speedy payments through international credit cards. Restrictions on foreign currency remittance imply that many businessmen make foreign payments through the illegal – but extensively used – system of “Hundi”. According to the Evidence Act (The Negotiable Instrument Act, 1881; Revised up to 1999), a physical signature is necessary to make any contract valid in the eyes of the law. This makes electronic contracts void under Bangladeshi law. The Evidence Law should be revised to recognize the validity of a digital signature. Commerce Issues Conducting business at the Chittagong port (the main port of Bangladesh) is comparatively more expensive than anywhere else in the region. One of the main reasons for such abnormally high costs for the port in Bangladesh are frequent strikes (locally known as hartaals) and arbitrary work stoppages by the trade unions. E-Commerce in Bangladesh: Status, Potential and Constraints Page IV - - Corporate taxes are high and burdensome, resulting in widespread tax evasion. Modest coverage and weak enforcement make cor porate taxation a minor contributor to the treasury. In addition, the tax system is not client friendly, appeal procedures are lengthy, and definitions of deductible business expenses are strict and nontransparent. Customs clearance and procedures continue to be saddled with delays and allegations of informal payments. The introduction of Pre-shipment Inspection (PSI) agents and the Green Channel are steps in the right direction in pr omoting speedy movement of goods. However, the government’s reliance on Customs as a major source of tax revenue and the private sector’s attempts to find ingenious means to forego taxes (at times in collusion with Custom officials) demands further modernization a nd improved monitoring systems of the Custom authorities. Governance Bangladesh has an intractable problem of poor governance. This has been manifested in the form of continued active involvement of politicians and public officials, often in collusion with the private sector, in adopting unfair business practices. As a consequence, institutions continue to remain weak and legal and regulatory reforms are difficult to implement. Rent seeking activities galore, discouraging competition and promotion of efficiency. Poor governance can be both a cause and an indirect effect of ineffective e-commerce development. If the cost of doing business remains high, characterized by bottlenecks, bureaucratic red tape and corruption, the efficiency gains from e-commerce becomes mute. Trade and commerce through e-commerce assumes business norms and practices that are mutually acceptable or understandable between buyers and sellers. Poor governance discourages trade in general and e-commerce in particular. The major reasons for poor Foreign Direct In vestment (FDI) in Bangladesh are its small domestic market, poor infrastructural facili ties, weak governance and poor law and order conditions. Bureaucratic red tape and corrupt ion also dissuades domestic investment. E- commerce and FDI are likely to reinforce eac h other’s presence and growth. Acceptance and successful application of e-commerc e would enhance the business environment, sending signals to foreign investors that it is becoming easier to do business in Bangladesh. Major Constraints to E-Commerce This paper highlights various constraints to commerce and trade in general and e-commerce in particular. ª Too few telephone connections ª Absence of a strong independent regulatory body for the telecommunication sector ª Absence of encryption law that precludes acceptance of digital signature. ª Strong dependence on Letter of Credit (L/C) to conduct international transactions. ª Non-issuance of international credit cards for cross border transactions. ª Interest rate ceiling on export loans. E-Commerce in Bangladesh: Status, Potential and Constraints Page V - - Policy Recommendations The paper provides a list of policy recommendations. A selected number are mentioned below: 1. Bring an end to Bangladesh Telegraph and Telephone Board’s (BTTB) monopoly in the nationwide long distance services and rationalize tariff of BTTB’s Digital Data Network (DDN). Establish the Bangladesh Telecommunications Regulatory Commission (BTRC), independent of governmental control and political influence. 2. Allow Voice over Internet Protocol (VoIP). Abolish the provision of obtaining permission from the Ministry of Posts and Telecommunications (MOPT), prior to leasing the capacity from GrameenPhone’s optical fiber network. VSAT operating licenses should not limit the bandwidth. 3. Develop encryption laws to accept electronic authentication of transactions. 4. Increase the number of pre-shipment agents (PSI). Increase fines and penalties on PSIs for breach of rules and regulations. 5. Allow Contract System and other alternates to Letter-of-Credit (L/C) as legal methods for international transactions. 6. Remove/relax interest ceilings on export loans offered by commercial banks. 7. Relax foreign exchange controls on travel and for business and allow issuance of international credit cards. 8. Make business associations and organizations aware of the benefits of e-commerce. BGMEA can play a significant role in this. 9. Instruct posting government documents and publications including budgetary information on the Web. 10.Orient government officials on the benefits of e-commerce. For instance offer short courses at training centers such as the Public Administration Training Center (PATC). 11.Simplify and expedite court procedures. Remove administrative and institutional constraints in settling disputes. 12.Political commitment to improve governance and institutional strengthening are essential for successful application of e-commerce. E-Commerce in Bangladesh: Status, Potential and Constraints Page 1 E-Commerce in Bangladesh: Status, Potential and Constraints 1. Introduction The Internet has opened up a new horizon for commerce, namely electronic commerce (e- commerce). The Internet, through advanced mechanisms of data transfer networks, establishes global linkages between cust omers and suppliers regardless of geographic location. E-commerce entails the use of the Internet in the marketing, identification, payment and delivery of goods and services. It involves order processing at company Websites and securing Electronic Fund Transfer (EFT) payment systems. Box 1: Definition of E-Market An e-market is a facilitated online environment th at connects multiple buyers and suppliers in a single, Web-based hub to more effectively match supply and demand while reducing transaction cycles and costs. The e-marketplace works for companies engaging in collaborative business. This is an Internet site where goods and services suppliers publish catalogues of their wares and service offerings, which can be accessed by a large number of buyers. Value-added services an e- market can offer include the provision of automated documents to speed up the negotiation process, decision-support information, and other e-commerce services — such as company profiles and financial services for credit checks, online transaction processing, and access to efficient means of fulfillment. Source: An Executive White Paper of Aberdeen Group, Inc. (www.aberdeen.com) 1.1 The Role of E-Commerce in the Era of Globalization Globalization has brought in many changes in the business scenario with the whole world inching towards one big market place. Communication between the buyers and sellers has become critical as each can opt to explore a greater number of alternatives than ever before. E-commerce through Internet, e-mails, websites, and other facilities, enables a businessman to be linked with every corner of the world, and thus opens up greater opportunities in the world market. Another important factor is the time required for completing a business transaction. As markets are becoming competitive and information is more readily available, a quick, reliable and replicable transaction implies availing of prevailing opportunities. On the contrary, delays in processing a transaction might become synonymous to wasting an opportunity. Therefore, a fast and alternative mechanism of communication, contract, and payment is an integral part of a globally competitive business organization. How important or relevant is e-commerce to the economy of Bangladesh – a developing economy – in general and to the export market in particular? The Information Technology (IT) revolution has been too phenomenal to predict its future growth and its use in an economy like Bangladesh’s. In the light of the recent spate of globalization and the initiation of the World Trade Organization (WTO), assessing the immediate and short or medium term relevance of e-commerce to Bangladesh becomes imperative. E-Commerce in Bangladesh: Status, Potential and Constraints Page 2 A review of the trade scenario of Bangladesh reveals that it has accepted the challenge of globalization by pursuing the most liberalized trade regime in South Asia. As a signatory of WTO, Bangladesh has accepted the Code of Good Practice of the WTO Agreement on Technical Barriers to Trade. Consequently, it is expected to adhere to various standards and technical regulations. To face the challenge posed by globalization, Bangladeshi producers will not only have to offer goods and services at competitive prices, but also ensure timely delivery, quality control and an efficient and reliable payment mechanism. However, the steps taken towards trade liberalization in Bangladesh become ineffective as a result of poor governance and weak infrastructure. Even simple day-to-day transactions with government bodies are characterized by unnecessary delays, obstructionism by public sector officials and demands for illegal payments. In addition to corruption, trade related regulations that are vague, contradictor y and improperly implemented aggravate the situation. 1.2 Objective of the Study E-commerce facilitates the very process of international transaction; this involves securing and finalizing a contract, delivery of the product, and finally payment for performance of the contract. The movement of goods and services, as well as the payment mechanisms within a country and more so outside a country, are governed by regulatory and legal issues. Hence, the regulatory environment is at the core of e-commerce development. This paper aims to highlight the status, statutes, potential and constraints of e-commerce development in Bangladesh. Both the statutory laws as well as the challenges in implementing them will be attempted. The paper shall also list specific policy changes aimed at bringing improvements to the l egal and regulatory environment affecting e- commerce. 1.3 Organization of the Report The following section, Section II of this paper, presents an overview of the status of e- commerce in Bangladesh. It discusses the various links and ways of communication used in e-commerce. The Readymade Garments (RMG) sector is given particular attention. Activities of the RMG Sector involve the highest level of cross-border transactions in Bangladesh. It is, therefore, strategically poised to be the front-runner in e-commerce applications as well. Section III provides an overview of the regulatory and legal issues related to e-commerce and telecommunication as well as presenting a brief review on their effects. It also focuses on the much-needed regulatory and institutional reforms in order to pave the way for e- commerce in Bangladesh. The finance and banking aspect of e-commerce is also discussed in this section. It also reviews the major regulatory acts affecting e-commerce, the macro trade policy regime, negotiable instruments and IPR (Intellectual Property Rights). E-Commerce in Bangladesh: Status, Potential and Constraints Page 3 Major conclusions on issues relating to legal and institutional constraints are summarized in the concluding section, Section IV. This section also presents a list of short term, medium and long term policy actions in e-commerce development. The annex comprises a number of relevant tables on regulatory and policy aspects of e-commerce. E-Commerce in Bangladesh: Status, Potential and Constraints Page 4 2. The Existing Situation and Potential of E-Commerce in Bangladesh Internet services are presently available iBangladesh. Its usage for e-commerce by the Bangladeshi producers to export as well as to access inputs will be dependent on their willingness and ability to use this medium as well as that of the buyers of final products and the sellers of intermediate goods and services. Figure 1: The Three Dimensions of E-Commerce Source: International Telecommunications Union, Millennium, October 1999, Geneva Figure 1 depicts the three dimensions of e- commerce. Business-to-Consumers (B2C) e- commerce is practically non-existent within Bangladesh, while a very limited level of Business-to-Business (B2B) and Business-to-Government (B2G) transactions exists. The potential for use of e-commerce by Bangladeshi consumers and businesses with foreign firms is much brighter, and can play an important role in boosting the country’s exports. A significant volume of B2G is also possible, as the government remains the biggest spender. 2.1 Business-to-Consumer (B2C) Scenarios Business-to-Consumer (B2C) e-commerce is unlikely to be of much use in the foreseeable future in Bangladesh. At the domestic level, low per capita income, limited infrustructural facilities (e.g. low teledensity), weak legal environment (inadequate contract laws, poor implementation and enforcement), and lack of trust and confidence between business and consumers are going to hinder B2C. In the backdrop of such limitations, the low wage economy, with high levels of unemployment and underemployment, will continue to rely on the physical presence of buyers and sellers during a transaction in most cases. B2C for cross border trade is inhibited by the factors suggested for the domestic front. In addition, non-availability of international credit cards, foreign currency remittance restrictions, delays E-Commerce in Bangladesh: Status, Potential and Constraints Page 5 and informal payments at customs clearance even for small value and quantity items will discourage B2C. 2.2 Business-to-Business (B2B) Scenarios As mentioned before, the Business to Business (B2B) scenario prevails in Bangladesh to a very limited extent. The B2B scenario exists mostly in the export sector, especially in the Ready Made Garments (RMG) industry. RMG has the lion’s share of the export earnings in Bangladesh, accounting for 75 percent of total exports. The current value of annual exports of the RMG sector is close to $4.35 billion. The RMG sector has begun to use the Internet, and its dependence on e-commerce is likely to grow significantly in the coming years. E-commerce through the Internet is poised to be an effective business tool for the RMG exporters. The Internet would enable them to seek information about potential buyers as well as raw material suppliers. Similarly the practice of posting a website by individual producers has begun. Opening a website is a step towards the right direction. Also, the adherence of Bangladeshi firms to quality, labor and environmental standards (e.g. ISO 9000, QS 9000) can also be shared and highlighted through the Internet technology . Box 2: E-commerce in the RMG Sector The RMG sector emerged during the early 1980s in Bangladesh and information has been the strategic partner in its phenomenal growth. Telex was the only tool of cross border data communication in those days. International courier services were the means of receiving the approved designs from the buyers. The Facsimile machine, in the mid 80s, radically replaced both of these orthodox communicating media (i.e. telex and courier). This “Office Automation Equipment” contributed towards accelerating RMG exports. Faster and cheaper data communications coupled with real-time design-pattern development enabled the buyer and manufacturer expediting business negotiations. A specific use of internet technology would be to access The Bangladesh Garment Manufacturer Exporter Association’s (BGMEA) website, which provides a list of member companies and key information regarding those firms. In addition, it updates and reports on the United States and Canadian quota used for the year on a given date. Concurrently, through the web site of the North American port authorities, the volume of quota items that have entered their respective countries can be found. A Bangladeshi producer may prefer to stop shipment and wait for the next year (when new quota privileges begin) to avoid the risk of collecting demurrage at a foreign port in case the quota has been exhausted. BGMEA can play a vital role in authentication of buyers and sellers through encryption method. Authentication by BGMEA can ensure the confidence of the importers regarding the genuineness of the manufacturers. This would discourage unscrupulous enterprises from making false claims on their web pages. Following the withdrawal of the quota system and the GSP in 2005, the RMG sector will inevitably become more competitive. As expected delivery time decreases, considering alternative payment mechanisms becomes imper ative. The effective use of e-commerce E-Commerce in Bangladesh: Status, Potential and Constraints Page 6 both for placing orders, purchasing raw materi als and for quick and efficient payment would be the necessary ingredients for any country to enhance its ability to deliver early. Necessary infrastructural, legal and regulatory reforms will be essential to avail of the e- commerce technology in dealing with the international market place. Access to the market depends on the buyers and sellers’ willingness and ability to market through mediums that are mutually cost effective, reliable, and replicable. A foreign buyer, say in the readymade garments sector, expresses a preference to use e-commerce for its purchases, thereby circumventing the Letter of Credit (L/C) mechanism to place an order. Since the overseas financial institutions often insist for “Add Confirmation” it increases the cost of L/C. Add Confirmation is basically a matter of payment guarantee depending on the country’s credit rating, asset status etc., where Bangladesh generally lags behind. If Bangladeshi producers are unable to accommodate electronic transfer of payment and other facets of e-commerce, the business opportunity will move on to countries that have developed such systems. E-commerce usage will become attractive when entrepreneurs will be convinced that this medium is capable of obtaining orders as well as increasing profitability by eliminating the role of middlemen. However, confidence and trust between the buyers and sellers is an important determinant. If the local producer fails to ensure adequate quality or timely delivery of products, the benefits of an efficien t search and communication process will be undermined. Thus, authentication of both buyer and seller is a prerequisite for successful implementation of this medium. The services of organizations like XMNet, Net ASM, etc. can be utilized in order to obtain information regarding authentic suppliers, manufacturers and buyers. XMNet is an organization that provides the service of verify ing the claims of sellers with excess goods. They send inspectors to readymade garment factories world wide to check on merchandise and production lines, and also use independent agencies to check product quality. On the other hand, they also provide the seller with the credit history of the buyer to help them locate genuine buyers. For a reasonable fee, a great deal of information can be found from the Net Asian Sources Media Group (ASM) website. With improvements in infrastructural facilitie s (e.g. cheaper and better access to Internet service), and greater application of the com puter in management and finance by individual firms, export oriented sectors (such as frozen food, sea food, leather) as well as importers would appreciate the ease and benefits of the Internet in promoting their products. E-Commerce in Bangladesh: Status, Potential and Constraints Page 7 Box 3: E-commerce in the Oil and Gas Sector International Oil Companies (IOCs) are the dominant players in the exploration and production of the oil and gas industry. IOCs use the vendors' web pages extensively in order to obtain product information. This exercise is also limited to the international vendors as the Bangladeshi business community has yet to become sufficiently cyber-centric. The IOCs make all the payments to the international vendors through Telegraphic Transfer. This is one good example of making cross border payments without following the complex mechanism of the Letter of Credit (L/C). The local vendors, however, receive their payments by check. IOCs have to abide by the Production Sharing Contract (PSC), signed with Petrobangla, the state oil company. Petrobangla shares the cost of exploration and production with the IOCs after the successful discovery of an oil or gas field. The IOCs are required to justify the procurement of every product and service pertaining to the exploration and production of each well to Petrobangla. If Petrobangla is convinced with the justification, only then does it share the cost with the IOCs. In view of the above scenario, the implementation of e- commerce in the energy sector is yet to kick-off in Bangladesh. Because, the financial discipline of Petrobangla is still being governedby the conventional parameters of Audit and Accounts of the Government of Bangladesh. Therefore, despite having all the logistical capabilities and human resources, the IOCs have yet to use e-commerce. However, akin to BTTB, a limited usage of electronic communicatio ns with the vendors does exist in the form of bid invitations and providing bid clarifications. 2.3 Business-to-Governmen (t2GS)cenarios The government is a major buyer of goods and serv ices from the private sector. Typically, the government procures goods and services by inviting tenders. This has been the traditional method of any government procurement for goods and services. Tender notices are published in the major national dailies followed by selling the Request for Proposal (RFP) documents to the interested bidders. If any bidder seeks clarification on any aspect of the RFP, the customer is mandated to notify that clarification to all bidders by mail. In addition to costing money and taking time, such notification sometimes forces the customer extending the bid-closing deadline. Bidders also obtain the RFP document “unofficially” for a comprehensive understanding of the ‘scope of work’ as well as for assessing their own capability. The availability of the RFP and other relevant documents on-line provides an alternate choice, thereby reducing the monopoly rent that can be extracted. In order to prevent such unfair practice, the Bangladesh Telegraph and Telephone Board (BTTB) initiated publishing the RFP documents of selected projects in its website. This immediately stopped the illicit practice of unofficially selling the RFP document, and only competent bidders were able to procure the RFP documents. In addition to reducing the extra administrative burden of BTTB, it also enabled BTTB to close those bids within a reasonable timeframe. The posting of the RFP documents on the Web is however an isolated effort being initiated by a few BTTB officials. E-Commerce in Bangladesh: Status, Potential and Constraints Page 8 Introducing on-line payment or allowing electronic fund transfer for selling the RFP would be a significant leap towards B2G in Bangladesh. There are numerous instances of deliberate “unavailability” of the RFP, namely while the bids for civil infrastructure projects are invited. Syndicated vested groups forbid the other bidders’ participation by forming a cartel. B2G inherently brings transparency in such cases and ensures a level playing field for all the bidders. Electronic submission of the RFP foll owed by presenting the hardcopies could also be used to promote transparency, accountability and the threat or coercion that is often evidenced during the bid submission period. In addition, transactions involving information collection, obtaining various governmental forms, registering activities can be conducted on-line. This will reduce time costs, corruption and the necessity of going through lengthy bureaucratic procedures as well as increasing transparency. E-Commerce in Bangladesh: Status, Potential and Constraints Page 9 3. Supportive Framework Electronic commerce generates competition, revenue and profit. It also creates flows of goods and services and hence traffic. Subsequently, it can act as an incentive for investors to finance locally available infrastructures, connectivity and bandwidth. However, before this ‘virtuous circle’ can be initiated, the ‘magictriangle’ -- access, trust and know-how -- an essential precondition for the start-up and expansion of electronic commerce, must be firmly established between both the public and the private partners involved. This magic triangle can only be set in place if it receives the full and active support from the various stakeholders. Figure 2: The Magic Triangle of E-Commerce Source: International Telecommunications Union, Millennium, October 1999. Geneva Access to e-technology such as the Internet is a necessary but not a sufficient condition for the development and growth of e-commerce. The popularity of e-commerce in any economy will be dependent not only on the cost, efficiency and reliability of Internet technology but also on the supportive framework that includes legal and financial infrastructural support as well as support in the form of technical expertise (know-how). A weak and inefficient supportive environment can damage the trus t among partners and will stranglehold the possibilities and attractiveness of using technology for business and commerce. 3.1 The Regulatory and Legal Environment To keep pace with the new era of globalization, Bangladesh’s legal framework must ensure that appropriate legislative, judicial and adm inistrative processes that support the public interest and private economic rights are in place. However, not much has been done in Bangladesh towards achieving that goal. Although certain century-old laws are being updated, the only significant legislative changes made in recent years have not proved to be E-Commerce in Bangladesh: Status, Potential and Constraints Page 10 very effective because of weak enforcement or provisions that allow for over-regulation (e.g. the Financial Loan Courts Act; the Securities and Exchange Commission Act). Akin to any business sector, the regulator y and legal environment affecting trade and commerce will influence e-commerce development. These include institutional and policy directives as well as implementation capability and constraints relating to integration of the Internet and movement of goods and services. Despite the presence of a good infrastructure the failure to move goods and services and make payments on par with the international norms may dissuade businesses to embrace e-commerce. This section highlights the overall industrial and trade policies dictating and influencing trade and commerce as well as e-commerce. Key Macro Policies There are two major government documents that reflect the mood of trade and investment policy directions to be pursued in the medium term. These are the Five-Year Plans and the Industrial Policy. A brief summary of these documents suggests a trend towards an increasing private sector led growth through the promotion of trade and investment. In the Third Five-year Plan (1985-90), trade policy reforms resulted in the promotion of exports coexisting with the protection of the do mestic market. The strategy of the Fourth Five-year Plan (1990-95) was similar to the preceding Plan with an increased emphasis on export promotion. The 1990s witnessed an accelerated level of reforms in conformity with the Fifth Five-Year Plan (1997-2002). The major features of the Fifth Plan are import liberalization; reduction and rationalization of the tariff structure; direct export promotion measures; and a flexible exchange rate. The Fifth Plan also advocates removal of supply- side constraints including, developing infrastructure facilities, and strengthening the institutional framework. The two Industrial Policies of the 1980s – the New Industrial Policy of 1982 (NIP82) and the Revised Industrial Policy of 1986 (RIP86) – attempted to simplify the tax structure, reduce the sanctioning procedures, and encouraged foreign investment. Both of these documents emphasized greater reliance on the private sector . The objective of the Industrial Policy, 1999 (Box A1, Annex I), is to establish a dominant export sector with the government’s role becoming increasingly that of a facilitator rather than a regulator. The Foreign Private Investment (Promotion and Protection) Act of 1980 guarantees legal protection to foreign investors against nati onalization and also indemnifies them against losses due to civil unrest. It also guarantees repatriation of capital and dividend and equal treatment with local investors. In comparis on with the investment regimes in South Asian countries, the investment regime in Bangladesh attracted only marginal inflows although it is considered to be more open than that of India. For instance, while there are limits to foreign equity participation in India and Pakistan, there are no limits placed on foreign equity E-Commerce in Bangladesh: Status, Potential and Constraints Page 11 participation. However, licensing regulations are required by the private sector in energy and telecommunications, which is also applicable in other South Asian countries. Trade and Commerce Related Legislation In the area of foreign trade, the legal framew ork is primarily governed by three legislative Acts: The Imports and Exports (Control) Act, 1950; The Customs Act, 1969; and The Foreign Exchange (Regulation) Act, 1947. Revisions and updates of these Acts are made periodically. Other legislation relating to trade is listed in Table 3.1. The Import Policy Order (IPO) 1997-2002 exempl ifies a liberalized trade regime, which accommodates Bangladesh’s decision to join the WTO. Unlike earlier import policy regimes, it does not discourage the import of consumer items. The Export Policy 1997-2002 aims at promoting exports in the regional and international markets. It calls for the diversification of exports, encouraging backward linkages, simpli fication of procedures and developing the necessary infrastructure. A list of documents required for import and export is provided in Annex I (Tables A2, A3, A4). The list also identifies the concerned authorities. Table 3.1: Legislation Relating to Trade Area Legislation Custom Duties Customs Act, 1969 Import Regulations Imports and Export (Control) Act, 1950; Customs Act, 1969; review, Appeal and Revision Order, 1977; Importers, Exporters and Indentors (Registration) Order, 1981; Licenses and Permit Fees Order, 1985 Customs Valuation Amendments introduced to the Customs Act, 1969, in 1997 Pre-shipment Inspection Amendments introduced to the Customs Act, 1969, in 1998 Rules of Origin Standard Rules of Origin, 1977 Standards Imports and Export (Control) Act, 1950 Sanitary and Phytosanitary Measures Imports and Export (Control) Act, 1950 Marketing and Labeling Imports and Export (Control) Act, 1950 Anti-Dumping Measures Amendments introduced to the Customs Act, 1969, in 1995 Countervailing Measures Amendments introduced to the Customs Act, 1969, in 1995 Safeguard Measures Amendments introduced to the Customs Act, 1969, in 1997 Pricing and Marketing Arrangements Consumer Index Export Regulations Import and Export (Control) Act, 1950; Customs Act, 1969 Government Procurement No legislation Competition Law No legislation Intellectual Property Rights Patents and Design Act, 1919; Copyright Ordinance, 1962; Trade Markets Act 1940 Foreign Investment Foreign Investment (Promotion and Protection) Act, 1980 E-Commerce in Bangladesh: Status, Potential and Constraints Page 12 Area Legislation Foreign Exchange Foreign Exchange (Regulation) Act, 1947 Banking Service Banking Companies Act, 1991 Insurance Services Insurance Act, 1938; Insurance Corporations Act, 1973; Insurance Rules, 1953 Telecommunications Services Telegraph Act, 1887 Air Transport Services Details not available from the authorities Maritime Transport Service Merchant Shipping Ordinance, 1993; Inland Shipping Ordinance, 1976; Bangladesh Flag Vessel (Protection) Ordinance, 1982 Source: World Trade Organization, 2000. Trade Policy Review Bangladesh. Customs procedures have undergone significant change since the early 1990s. Major changes include introduction of a Green Channel system for incoming passengers (customs). Pre-shipment Inspection (PSI) was introduced on a voluntary basis in 1993 and then made mandatory in the 1999-2000 Budget. Se lf-assessment procedure has also been introduced to facilitate customs clearance of se lected commodities like food grain. Customs clearance has been computerized at the Dhaka Customs House and the Chittagong Customs House. In January 2000, Bangladesh adopted the WTO Customs Valuation system. Minimum import process (called Tariff Value) was used unti l recently for customs valuation purposes. With the PSI system made mandatory in 1999-2000, the system of Tariff Values has been abolished. A well-functioning PSI system requires high credibility and efficiency of the contracting agencies. Recently, there have been allegations of misrepresentation of commodities and country of origin. Adequate checks and deterrents in the form of fines and other civil and criminal charges are to be put in order to ensure that the PSI system is not compromised through cheating, collusion and graft. Bangladesh amended its Customs Act, 1969, allowing provisions on anti-dumping and countervailing rules in 1995 and safeguard rules in 1997. The Act has also been amended to introduce transaction values as the basis for customs valuation in 2000. Other Related Regulations Other related regulations include the Intellectu al Property Rights (IPR) legislation, which dates from the pre-independence era. Patent s, trade marks, and copyrights are governed by: the Patents and Designs Act, 1911 and the Patents and Designs Rule, 1933; the Trade Marks Act, 1940 and the Trade Marks Rules, 1963; and the Copyright Ordinance, 1962, as amended by the Copyright (Amendment) Act, 1974, and the Copyright (Amendment) Ordinance, 1978. E-Commerce in Bangladesh: Status, Potential and Constraints Page 13 The agreement on Trade-Related Intellectual Pr operty Rights (TRIPS) provides standards for Intellectual Property Rights relating to patents, copyright and related rights, trademarks, industrial designs, and layout designs of integrated circuits, undisclosed information, and trade secrets. Bangladesh has an eleven-year tr ansitional period (i.e. until January 2006) to meet the obligations under this agreement. The prevailing national legislation requires amendments to conform to the provisions of the agreement on TRIPS. There is also a strong need for developing administrative ability to enforce intellectual property rights. Certain regulations (such as the Intellectual Property Rights bill, the Evidence Act) have the capability of facilitating the scope of e-commer ce. The new Intellectual Property Rights (IPR) bill of Bangladesh concentrates mainly on software copyright protection. However, the e-commerce related copyright protection is not covered in the new IPR. An initiative for including these issues into the IPR is needed for the advancement of e-commerce. According to the Evidence Act (The Negotiable Instrument Act, 1881; Revised up to 1999), a physical signature is necessary to make any contract valid in the eyes of the law. This makes electronic contracts void under Bangladeshi law. The Evidence Law should be revised to recognize the validity of a digital signature. The Contract Law in Bangladesh is governed by the Contract act 1872. According to this Act, cross border contracts are legal. As wi th the Evidence Act, a physical signature is necessary to make a contract valid. However, with regard to communication regarding the contract, letters by post and telegrams are acceptable in the eyes of the law. Legislation that legalizes digital certificates, electronic contracts, etc should also be enacted. Two acts play an important role in dispute settlement cases -- the Arbitration Act 1940 and the Money Loan Court Act 1990. The Arbitration Act governs the settlement of any disputes arising from business transactions. The primary aim of this Act is to attempt to resolve the differences of the two parties without having to resort to a Court of Law. The Money Loan Court (Artha Rin Adalat) is an independent judicial body established under the Money Loan Court Act 1990 and the Money Loan Court Regulation 1990 to recover public money loaned to individuals through public sector financial institutions. The judges for these courts are selected from among the Sub-Ordinate Judges by the government in collaboration with the Supreme Court and admini stratively it performs directly under the Supreme Court. According to the Act, Money Loan Courts are supposed to be established in every district in Bangladesh, with the provision that if necessary more than one Court may be established in a single district. However, so far only a few Courts have been established. The Money Loan Courts are overburdened with the enormous number of cases they have to deal with. In September 2000, the number of cases pending in the Courts was 57,435. According to a Bangladesh Bank report, the amount involved in these cases is US$ 1.6 billion. In the past one year, the number of cases pending increased by 3,000. A significant number of these cases have been determined to be bad debts. E-Commerce in Bangladesh: Status, Potential and Constraints Page 14 In a country with only 53 percent literacy rate (UNICEF, 1999) and where almost half the population live below the poverty line, consumer protection or consumer vigilance is a concept regarding which most people still remain unaware. In Bangladesh, there are no laws that directly provide for Consumer Protec tion. However, a number of existing laws, if implemented appropriately, can play a significant role in support of Consumer Protection. Two Articles in the Constitution in Bangladesh -- Article 15 and Article 18 – state some broad principles regarding consumer protection. Articl e 18 specifically includes raising the level of nutrition and improvement of public health among the states primary duties. Article 15 can be interpreted as making the provision of basic necessities a fundamental responsibility of the state. The Penal Code 1860 is one of the oldest existing statutes in Bangladesh. Certain provisions in this code have direct bearing on consumer rights; some of which have been broadened into separate legislative acts. However, apart from these very broad principles, specific legislation is hard to ident ify. The meager legislation that does exist is scattered through other acts that are only indirectly related to consumer protection (Box 4). Box 4: Acts and Laws Related to Consumer Protection 1. Control of Essential Commodities Act 1956 2. Pure Food Ordinance 1959 3. Price and Distribution of Essential Commodities Ordinance 1970 4. Bangladesh Drugs Control Ordinance 1982 5. Breast Milk Substitute (Regulation of Marketing) Ordinance 1984 6. Tobacco Goods Marketing (Control) Act 1988 7. PenalCode1860 8. Special Powers Act 1974 9. Dangerous Drugs Act 1930 10. Trade Mark Act 1940 11. Standards of Weights and Measures Ordinance 1982 Source: Rahman, Mizanur, 1994. Consumer Protection Law and the Swedish Approach. 3.2 Telecommunications: An Integral Part of E-Commerce Access, pricing, and the quality of Internet services are critically dependent on the status and performance of the telecommunications sector. The telecommunication sector of Bangladesh is characterized by poor level of penetration (0.4 telephone for every 100 persons, Graph 1), high cost to access, $341 connection fees for each telephone, one of the highest in the world, and a lengthy waiting period -- average waiting period for a new telephone connection varies from three months to ten years. E-Commerce in Bangladesh: Status, Potential and Constraints Page 15 Graph 1: Telecom Indicator in South-Asia in 2000 Telephones per 100 people 7.97
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