united nations commission on international trade law uncitral model law on electronic commerce ...

UNITED NATIONS COMMISSION ONINTERNATIONAL TRADE LAW

UNCITRAL Model Law on Electronic Commerce

www.uncitral.org Renaud Sorieul

Senior legal Officer

UNCITRAL secretariat

Model Law on Electronic Commerce

• Electronic commerce

– Not necessarily electronic

– Not necessarily commercial in nature


• The new and the not-so-new (I)

– Precedents in de-materialization of information with a degree of legal effectiveness:

• telephone• telefax• distance contracting


• The new and the not-so-new (II)

– Elements of novelty• legal effect without traditional written document• need for legal rules applicable in an

international environment• lesser relevance of territory and geographical

location


• Electronic Commerce challenges and existing regulatory structures:– Is conventional law obsolete?– Will existing requirements apply?– How can certainty be achieved?– Should solutions be international?


• UNCITRAL studies concluded:– Existing law is not obsolete, but may

create obstacles to electronic commerce

– Contract is insufficient– Mandatory requirements need

legislation– Uniform international solutions needed


• 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


• Adopted by UNCITRAL in 1996 and (as at 21 June 2002) already transformed into law in 14 countries and regions:– Australia, Bermuda, Colombia, Ecuador,

France, Hong Kong SAR (China), India, Ireland, Jersey (UK Crown dependency), Philippines, Republic of Korea, Singapore, Slovenia, State of Illinois (USA)


• Uniform Acts based on the Model Law in 2 countries:

– Canada and United States


• Countries currently considering draft legislation based on or influenced by the Model Law:

– Brazil, Chile, Iran, Jordan, Mexico, Morocco, New Zealand, Peru, Spain, Thailand


• Scope of the Model Law:– Applies to electronic messages “used in

the context of commercial activities”– “Electronic message” broadly defined

(includes EDI, e-mail, telegram, telex and fax)

– Does not affect consumer protection laws


• Basic principles of the Model Law:

– Functional equivalence

– Media and technology neutrality

– Party autonomy


• Functional equivalence:

– analyze purposes and functions of paper-based requirements such as writing, signature and original

– consider criteria necessary to give electronic data the same level of recognition as information on paper


• Media and technology neutrality

– equal treatment of paper-based and electronic transactions

– equal treatment of different techniques


• Party autonomy (I)

– primacy of party agreement

– parties free to choose security level


• Party autonomy (II)– The Model Law as a tool for enabling

electronic commerce in an open environment

– The Model Law as a source of inspiration for contractual frameworks governing electronic commerce in a closed environment


• Core provisions– Article 5 (Legal recognition)– Article 6 (Writing)– Article 7 (Signature)– Article 8 (Original)– Article 9 (Evidence)– Article 10 (Record retention)


• Legal recognition: Articles 5 and 5bis

– Information shall not be denied legal effect, validity or enforceability solely because it is in the form of a data message

– Incorporation by reference


• Writing: Article 6

– 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.


• Signature: Article 7– Legal signature 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.


• Original: Article 8– 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.


• Original: Article 8

– Criteria for assessing integrity: whether the information has remained complete and unaltered, apart from the addition of any endorsement and any change which arises in the normal course of communication, storage and display.


• Original: Article 8

– Standard of reliability required shall be assessed in the light of the purpose for which the information was generated and of all the relevant circumstances.


• Other provisions:– acknowledgement of receipt– time and place of dispatch and receipt– attribution– electronic commerce in specific areas

(carriage of goods)

Current work by UNCITRAL

• Omnibus convention

• Electronic contracting

• On-line dispute resolution

• Documents of title

Work by international organizations

• Privacy, data protection: ISO, ITU, ILO, OECD, UNESCO, ICC, UPU, WTO

• Commercial law framework: UNCITRAL, ICC

• Authentication: UNCITRAL, ICC, OECD, ITU, ILP

• Financial issues: UNCITRAL, UNCTAD

Work by international organizations

• Intellectual property: WIPO, ILO, WCO

• Jurisdiction: Hague Conference, OECD, ICC, ILPF

• Dispute resolution: WIPO, ICC, Inter-Pacific Bar Association