UNITED NATIONS COMMISION ON INTERNATIONAL TRADE LAW (UNCITRAL)

1
UNITED NATIONS COMMISION ONINTERNATIONAL TRADE
LAW(UNCITRAL)

• Raising confidence in E-commerce the legal
  framework
• UNCITRAL Secretariat
• Vienna, Austria

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E-Commerce and Private Law

• E-Commerce creates new issues
• Classification difficulties the virtual goods
• New contract types web hosting, web server etc.
• but the essence of business transactions
  remains the same.
• Conventional law has not become obsolete...
• On line contracts are not different from off
  line
• Medium of a transaction is generally irrelevant
  for the law.
• and nevertheless, it requires some adaptation.

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Sources of Legal Obstacles to e-Commerce

• Legal concepts based on the existence of a
  tangible medium
• instrument, document, original,
  signature,
• Legal concepts based on geographic location
• delivery, receipt, dispatch, surrender

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International Harmonization Efforts the UNCITRAL
Model Laws

• Importance of international harmonization and
  reasons for model laws
• UNCITRAL Model Law on Electronic Commerce (1996)
• UNCITRAL Model Law on Electronic Signatures
  (2001)
• (available in all UN official languages at
  http//www.uncitral.org/english/texts/electcom/eco
  mmerceindex.htm. List of enacting States
  http//www.uncitral.org/english/status/status-e.ht
  m)

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Influence of the UNCITRAL Model Law on Electronic
Commerce

• Adopted by UNCITRAL in 1996 and already
  transformed into law in several countries
• Australia (1999), Colombia (1999), Bahrain
  (2002), Dominican Republic (2002), Ecuador
  (2002), France (2000), India (2000), Ireland
  (2000), Jordan (2000), Mauritius (2000), Mexico
  (2000), New Zealand (2000), Pakistan (2000),
  Panama (2001), Philippines (2000), Republic of
  Korea (1999), Singapore (1998), Slovenia (2000),
  South Africa (2002), Thailand (2003), and
  Venezuela (2001).
• Except for provisions on electronic signatures

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Influence of the UNCITRAL Model Law on Electronic
Commerce

• Uniform legislation influenced by the Model Law
  and the principles on which it is based has been
  prepared in the United States (Uniform Electronic
  Transactions Act 1999) and enacted by the States
  of Alabama (2001), Arizona (2000), Arkansas
  (2001), California (1999), Colorado (2002),
  Connecticut (2002), Delaware (2000), Florida
  (2000), Hawaii (2000), Idaho (2000), Indiana
  (2000), Iowa (2000), Kansas (2000), Kentucky
  (2000), Louisiana (2001), Maine (2000), Maryland
  (2000), Michigan (2000), Minnesota (2000),
  Mississippi (2001), Missouri (2003), Montana
  (2001), Nebraska (2000), Nevada (2001), New
  Hampshire (2001), New Jersey (2000), New Mexico
  (2001), North Carolina (2000), North Dakota
  (2001), Ohio (2000), Oklahoma (2000), Oregon
  (2001), Pennsylvania (2000), Rhode Island (2000),
  South Dakota (2000), Tennessee (2001), Texas
  (2001), Utah (2000), Vermont (2003), Virginia
  (2000), West Virginia (2001), Wisconsin (2004),
  Wyoming (2001) and the District of Columbia
  (2001). The State of Illinois had already enacted
  the Model Law in 1998.

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Influence of the UNCITRAL Model Law on Electronic
Commerce

• Uniform legislation influenced by the Model Law
  and the principles on which it is based has also
  been prepared in Canada (Uniform Electronic
  Commerce Act 1999) and enacted in nearly all
  Provinces and Territories, including British
  Columbia (2001), Manitoba (2000), New Brunswick
  (2001), Newfoundland and Labrador (2001), Nova
  Scotia (2000), Ontario (2001), Prince Edward
  Island (2001), Saskatchewan (2000), and Yukon
  (2000). Legislation influenced by the Model Law
  and the principles on which it is based has also
  been adopted in the Province of Quebec (2001).

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Influence of the UNCITRAL Model Law on Electronic
Commerce

• Also enacted in various non-sovereign
  jurisdictions
• Bailiwicks of Guernsey (2000), and Jersey (2000),
  and the Isle of Man (2000) (UK Crown
  Dependencies)
• Bermuda (1999), Cayman Islands (2000), and the
  Turks and Caicos Islands (2000) (UK overseas
  territories)
• Hong Kong Special Administrative Region of China
  (2000)

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State of Legislation in Other Countries

• European Union a special case
• Directive on Electronic Signatures
• Implemented in Austria, Denmark, Germany,
  Ireland, Italy, Spain, United Kingdom
• Directive on Electronic Commerce
• Implemented in Austria, Denmark, Germany,
  Ireland, Italy, Portugal, Spain, United Kingdom

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State of Legislation in Other Countries

• EU member States with their own laws on
  electronic commerce
• France and Ireland (both UNCITRAL), Italy (in
  some respects)
• Eastern Europe
• Laws on electronic commerce
• Romania, Slovenia (both UNCITRAL)
• Laws on electronic signatures
• Estonia, Lithuania, Poland, Russian Federation

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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

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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

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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)

14
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

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Core Provisions of the UNCITRAL Model Law

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

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Core Provisions of the UNCITRAL Model Law
Article 5 and 5 bis

• 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

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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.

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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.

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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.

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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.

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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)

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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.
• 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.

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Default Rules in the UNCITRAL Model Law Article
15

• 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.

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UNITED NATIONS COMMISION ONINTERNATIONAL TRADE
LAW(UNCITRAL)

• For more information on the work of UNCITRAL in
  the are of electronic commerce, or on other
  topics, please visit our web site
• http//www.uncitral.org/
• Thank you for your attention!