UNCITRALModel Law

D3pak Kumar

EC-Council certified : C|EH C|HFI

UNCITRAL Adopted on 30 January 1997

UNCITRAL : What is it ? Why should we be aware about it ?

Following the United Nations Commission on International Trade Law (UNCITRAL) Model Law on E-Commerce, the Government of India enacted the Information Technology Act in June 2000.

The Act facilitates E-commerce and E-Governance in the country. The Act also establishes a regulatory framework and lays down punishment regimes for different cyber crimes and offences.

UNCITRAL : What is it ? Why should we be aware about it ?

Adopted on 30 January 1997

It recommends inter alia that all States give favorable consideration to the Model law when they enact or revise their laws in view of the need for uniformity of the law applicable to alternatives to paper-cased methods of communication and storage of information.

UNCITRAL : What is it ? Why should we be aware about it ?

Recognizing the necessity to give effect to the Resolution, and

with an objective of promoting efficient delivery of government services by means of reliable electronic records, the Government of India enacted the Information Technology Act in June 2000.

Why was it needed ?

The UNCITRAL model law: background

in many countries the existing legislation governing communication and storage of information were inadequate or outdated because they did not contemplate the use of electronic commerce. …

many countries lacked in legislations for dealing with E-commerce as a whole results in uncertainty as to the legal nature and validity of information presented in a form other than a traditional paper document.…

Inadequate legislation at the national level created obstacles to international trade.

The UNCITRAL model law: background

The purpose of Model law was to offer National legislators a set of internationally accepted rules as to

how a number of such legal obstacles may be removed, and

how a more secure legal environment may be created for what has become known as electronic commerce.…

Why was it needed ?

What UNCITRAL Says ?

E-Commerce in the UNCITRAL Model Law

Objectives of the Model Law:

To facilitate rather than regulate electronic commerce

To adapt existing legal requirements

To provide basic legal validity and raise legal certainty

Basic Principles of the Model Law

Functional equivalence

Analyze purposes and functions of paper-based requirements (“writing”, “record”, “signature”, “original”)

Consider criteria necessary to replicate those functions and give electronic data the same level of recognition as information on paper

Basic Principles of the Model Law

Media and technology neutrality Equal treatment of paper-based and electronic transactions

Equal treatment of different techniques (EDI, e-mail, Internet, telegram, telex, fax)

Basic Principles of the Model Law

Party autonomy Primacy of party agreement on whether and how to use e-commerce techniques

Parties free to choose security level appropriate for their transactions

Core Provisions of the UNCITRAL Model Law

Article 5 (Legal Recognition) Article 6 (Writing) Article 7 (Signature) Article 8 (Original) Article 9 (Evidence)

Recall Indian Laws talk about all these .. We will see ahead

Core Provisions of the UNCITRAL Model Law: Article 5 and 5 b is

Information shall not be denied legal effect, validity or enforceability solely because: it is in the form of a data message or It is incorporated by reference

Core Provisions of the UNCITRAL Model Law: Article 6 (Writing)

Where the law requires information to be in writing, that requirement is met by a data message if the information contained therein is accessible so as to be usable for subsequent reference.

Core Provisions of the UNCITRAL Model Law: Article 7 (Signature)

Legal requirement is met in relation to a data message if:

a method is used to identify the signatory and to indicate his approval of the information contained in the data message; and

that method is as reliable as was appropriate for the purpose for which the data message was generated or communicated.

Core Provisions of the UNCITRAL Model Law: Article 8 (Original)

Legal requirement is met by a data message if:

there exists a reliable assurance as to the integrity of the information from the time when it was first generated in its final form, as a data message or otherwise; and information is capable of being displayed to the person to whom it is to be presented.

Core Provisions of the UNCITRAL Model Law: Article 9 (Evidence)

In any legal proceedings, nothing in the rules of evidence shall apply so as to deny the admissibility of a data message in evidence solely because it is a data message.

Other Provisions of the Model Law

Article 11 (Use of data messages in contract formation)

Article 12 (Non-repudiation) Article 13 (Attribution of data messages) Article 14 (Acknowledgement of receipt) Article 15 (Time and place of dispatch and

receipt) Articles 16 and 17 (Electronic commerce

and carriage of goods)

Article 15 (Time and place of dispatch and receipt)

A data message is deemed to be sent when it enters an information system outside the control of the originator.

Article 15 (Time and place of dispatch and receipt)

A data message is deemed to be received:

a) If the addressee has designated an information system to receive the message, when the message enters the designated system; or

b) If the message is sent to an information system other than the designated system, when the addressee retrieves the message.

Article 15 (Time and place of dispatch and receipt)

If the addressee has not designated an information system, the message is deemed to be received when it enters an information system of the addressee.

Data messages are deemed to be sent at the place where the originator has its place of business and received at the place where the addressee has its place of business.

Overview of the Indian law and it’s

Deviation from UNCITRAL Model

Overview of the Indian lawThe objectives of the Information Technology Act, as outlined in the preamble, are to

• provide legal recognition for E-commerce transactions, facilitate Electronic Governance and

• amend the Indian Penal Code, Indian Evidence Act 1872, the Bankers’ Book Evidence Act 1891 and the Reserve Bank of India Act 1934.

 The Act also establishes a regulatory framework for cyber laws and lays down punishment regimes for different cyber crimes and offences.

Overview of the Indian law

Legal recognition for digital signatures. Electronic governance. Regulatory framework. Offences and penalties.

Some Deviations in Indian Law

digital signatures and

provisions relating to online contracting.

Digital Signatures …. Deviations Model Law -- Article 7 The Information Technology Act mandates certain

technical standards—

that is, an asymmetric cryptosystem commonly known as ‘public key encryption’ and ‘hash function’. [Section 3 of the Act]

Certifying Authorities ….

Deviations in provisions relating to online contracting.

Model Law -- Article 11

the Indian Information Technology Act does not have any express provision regarding the validity or formation of online contracts.

The Indian Contract Act 1872 deals with the validity of contracts.

Deviations in provisions relating to online contracting.

It does not prescribe any particular method for the communication of offer and acceptance.

Thus, there is no requirement of writing for the validity of contracts, except in such cases where the requirement of writing is specifically mandated by law

References…..

E-Commerce Law in Developing Countries: An Indian Perspective ;

By - C. M. ABHILASH

Raising confidence in E-commerce: the legal framework ;

By - UNCITRAL Secretariat, Vienna, Austria

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