ECOMMERCE AND INTERNATIONAL TRANSPORT: COLOMBIAN AND AIR CARGO PERSPECTIVE

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E-COMMERCE AND INTERNATIONAL TRANSPORT COLOMBIAN
AND AIR CARGO PERSPECTIVE

• Presentation made to the Expert meeting on
  e-commerce and international transport services
• Geneva, september 26 28

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(No Transcript)
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It is expected that by year 2002, nearly 2 of
Colombian population is connected to internet
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from www.nic.co
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Introduction

• Efforts to improve connectivity of Colombia
  National Agenda for Connectivity
• Legal Framework for E-commerce in Colombia
• Experience and main issues on E-commerce and
  Transportation services
• E-Commerce in international air cargo
  transportation services

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NATIONAL AGENDA FOR CONNECTIVITY

• Mass Access to Infrastructure
• Education
• Private Sector Online
• Incentives to Promote E-Business Investments
• Content Development
• Government Online

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LEGAL FRAMEWORK FOR E-COMMERCE (1)

• DECEVAL experience
• Law 222 of 1995 (Sharehorlders meetings)
• Dec. 2150 of 1995 (Sending electronic
  information to governmental entities )
• Law 223 of 1995
• Decreto 1094 de 1996 (electronic Invoice)
• Law 527 of 1999
• Decisions C-662/00 and C-831/01
• Decree 1747 de 2000
• Res. 26930 de la SIC

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LEGAL FRAMEWORK FOR E-COMMERCE (2)

• Colombia participates of the Civil law
  tradition
• Based on written law
• Most contracts forms by the mere agreement of
  will
• Good Faith principle in place, but Articles of
  Code of Procedure developed cultural barriers
  most of the time contracts are written

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LAW 527 of 1999

• Part I and Part II basically adopted UNCITRAL
  model law, including those related to
  transportation services
• Part III was mainly taken from Utah legislation
  and regulates E-signatures, E-certificates and
  certification entities issues

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LAW 527 APPLICABILITY

• Broader than UNCRITRAL model law
• This law is applicable
• to any kind of information
• in the form of data message
• Decision from Constitutional Court (C-662/00 of
  June 8, 2000 and C-831/01 of August 8, 2001)
  declared constitutionality of these provisions

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LAW 527 E-Signature
It is a numeric value added to an e-message
...
Art. 2 Ley 527 1999
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DECREE 1747 OF 2000

• Chapter I. General Aspects
• Chapter II. Certificación entities and digital
  Certificates.
• Chapter III. Powers of Superintendencia de
  Industria y Comercio.
• UNTIL TODAY ONLY ONE AUTHORIZED CERTIFICATION
  COMPANY

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E-COMMERCE AND TRANSPORT SERVICES

• Customs implementation of SIDUNEA and now
  SIGLO XXI programs to facilitate
• PROEXPORT promotion of exports and logistics
  webpage www.proexport.gov.co/logistica
• Main Colombian ports offer services online
• Main Colombian airlines offer services online

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PROBLEMS IDENTIFIED AND CONCLUSIONS

• Good legislation in place BUT
• Lack of infraestructure
• Cultural problem non-confidence in e-documents
• Strict approach from some crucial authorities
  Customs (DIAN) and Consumer and antitrust
  authority (SIC) may represent a barrier to
  e-commerce

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INTERNATIONAL AIR TRANSPORT E-COMMERCE

• Changes Introduced to Warsaw System by Montreal
  Protocol No. 4 (MP4)

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MP4 Changes to Warsaw Convention

• Carrier must deliver an air waybill (Art. 5. 1)
• But with consent of consignor carrier may
  substitute any other means that preserves a
  record of the carriage (Art. 5 2.)
• Consignor can require carrier to deliver receipt
  (Art. 5 2.)
• Receipt must identify consignment, and permit
  access to the record (Art. 5 2.)

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MP4 Issues - Consent

• Other means allows use of e-commerce procedures
• Provided consignor consents
• Art. 5 MP4 does not identify conduct that can be
  basis of consent in electronic environment
• Consent issues governed by national Law on
  Electronic Commerce

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UNCITRAL MODEL LAW ON E-COMMERCE

• Provides an effective legal platform for
  electronic commercial transactions
• Supplements provisions of MP4

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UNCITRAL MODEL LAW

• Legal Equivalence of electronic documents
• Electronic signatures
• Retention of electronic records and Submission
  of Electronic documents to interested parties,
  and
• Principles that apply to Electronic trading.

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Principle of Consent

• UNCITRAL model law does not address the issue of
  consent or significant assent.
• In the meantime this should be solved either
  contractually or by applying national principles
  of law
• General principle in Colombia No one is required
  to use or accept information in electronic form,
  but a person's consent to do so may be inferred
  from a course of conduct and Electronic trading
  practices
• Same principle should apply in determining
  consent under MP4

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Consent may beimplied from conduct

• By engaging in electronic trading, e.g. EDI
  messages, or data entered on-screen in
  carriers Web form
• Consignment data must be accessible , either by
  consignor retrieving data from secure Website or
  receiving e-mail confirmation from Website or
  carrier
• See Articles 11 12 of UNCITRAL model law

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Electronic Record be Usable by Party

• Electronic records must be accessible and
  capable of being retained by other party for use.
  
• Does MP4 require that accessible include
  ability to use record? Or is ability to view
  record all that is required?
• Requirement that electronic record be usable is
  commercially sensible

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Requirement of Receipt

• MP4 Article 5 requirement that Receipt be
  delivered must air carrier provide physical
  document to consignor? Paradox
• UNCITRAL permits use of electronic equivalent of
  paper document
• Signature incorporated in machine readable
  document format is functional equivalent of
  receipt

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Other Issues Terms and Conditions of Carriage

• Article 11 - Air waybill or receipt is prima
  facie evidence of ... the conditions of carriage
  mentioned therein.
• Unlike waybill or receipt, an Electronic Record
  is not evidence of conditions
• Does have Air carrier to use paper waybill or
  receipt to benefit from presumption in Article 11?

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Terms and Conditions(2)

• Model Law covers use of electronic messages for
  transportation
• Permissible use includes notifying a person of
  terms and conditions of a contract of carriage of
  goods
• Despite omission in MP4 language, air carriers
  conditions govern carriage

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MP4 Reduces Formalities of Transport
Documentation
Article 5 2. - Any other means which would
preserve a record of the carriage to be performed
may, with the consent of the consignor, be
substituted for the delivery of an air waybill.
Article 10 - Non-compliance with the provisions
of Articles 5 to 8 shall not affect the existence
or the validity of the contract of carriage, . .
which remains subject to . . . rules of this
Convention including those relating to limitation
of liability.