UNITED NATIONS COMMISION ON
INTERNATIONAL TRADE LAW
(UNCITRAL)
Raising confidence in E-commerce: the
legal framework
UNCITRAL Secretariat
Vienna, Austria
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.
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”
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/ecommercei
ndex.htm. List of enacting States:
http://www.uncitral.org/english/status/status-e.htm)
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
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.
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).
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)
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
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
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 paperbased 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, email, 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)
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
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.
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.
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.
UNITED NATIONS COMMISION ON
INTERNATIONAL 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!
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Model Law on Electronic Commerce