UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW

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UNITED NATIONS COMMISSION ONINTERNATIONAL TRADE
LAW

• UNCITRAL Model Law on Electronic Commerce
• www.uncitral.org Renaud Sorieul
• Senior legal Officer
• UNCITRAL secretariat

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Model Law on Electronic Commerce

• Electronic commerce
• Not necessarily electronic
• Not necessarily commercial in nature

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Model Law on Electronic Commerce

• The new and the not-so-new (I)
• Precedents in de-materialization of information
  with a degree of legal effectiveness
• telephone
• telefax
• distance contracting

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Model Law on Electronic Commerce

• 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

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Model Law on Electronic Commerce

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

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Model Law on Electronic Commerce

• 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

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Model Law on Electronic Commerce

• 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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Model Law on Electronic Commerce

• 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)

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Model Law on Electronic Commerce

• Uniform Acts based on the Model Law in 2
  countries
• Canada and United States

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Model Law on Electronic Commerce

• Countries currently considering draft legislation
  based on or influenced by the Model Law
• Brazil, Chile, Iran, Jordan, Mexico, Morocco, New
  Zealand, Peru, Spain, Thailand

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Model Law on Electronic Commerce

• 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

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Model Law on Electronic Commerce

• Basic principles of the Model Law
• Functional equivalence
• Media and technology neutrality
• Party autonomy

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Model Law on Electronic Commerce

• 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

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Model Law on Electronic Commerce

• Media and technology neutrality
• equal treatment of paper-based and electronic
  transactions
• equal treatment of different techniques

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Model Law on Electronic Commerce

• Party autonomy (I)
• primacy of party agreement
• parties free to choose security level

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Model Law on Electronic Commerce

• 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

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Model Law on Electronic Commerce

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

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Model Law on Electronic Commerce

• 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

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Model Law on Electronic Commerce

• 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.

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Model Law on Electronic Commerce

• 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.

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Model Law on Electronic Commerce

• 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.

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Model Law on Electronic Commerce

• 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.

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Model Law on Electronic Commerce

• 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.

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Model Law on Electronic Commerce

• Other provisions
• acknowledgement of receipt
• time and place of dispatch and receipt
• attribution
• electronic commerce in specific areas (carriage
  of goods)

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Current work by UNCITRAL

• Omnibus convention
• Electronic contracting
• On-line dispute resolution
• Documents of title

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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

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Work by international organizations

• Intellectual property WIPO, ILO, WCO
• Jurisdiction Hague Conference, OECD, ICC, ILPF
• Dispute resolution WIPO, ICC, Inter-Pacific Bar
  Association