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UNCITRAL United Nations Commission on International Trade Law
Uniform law of electronic
commerce: fundamentals, recent
developments and opportunities to
support innovation
Luca Castellani
Secretary, UNCITRAL Working Group IV
(Electronic Commerce)
UNCITRAL United Nations Commission on International Trade Law
The mandate of UNCITRAL
• The core legal body of the United Nations system in the
field of commercial law.
• Has operated for 50 years on the basis of universal
membership.
• UNCITRAL's business is the modernization and
harmonization of rules on international business.
• UNCITRAL started working on legal aspects of electronic
commerce already in the 1980s:
– Electronic Data Interchange (EDI), cross-border electronic
payments.
UNCITRAL United Nations Commission on International Trade Law
UNCITRAL texts on electronic commerce
UNCITRAL United Nations Commission on International Trade Law
UNCITRAL work on electronic commerce
• UNCITRAL Model Law on Electronic Commerce, 1996
– Definition of fundamental terms and notions.
• UNCITRAL Model Law on Electronic Signatures, 2001
– Additional guidance on e-signatures (two-tier approach).
• United Nations Convention on the Use of Electronic
Communications in International Contracts, 2005:
– Specifically made for cross-border transactions;
– Complements and updates MLEC.
• UNCITRAL Model Law on Electronic Transferable Records, 2017.
• Current work of UNCITRAL Working Group IV:
– legal aspects of identity management and trust services;
– contractual aspects of cloud computing.
UNCITRAL United Nations Commission on International Trade Law
• The UNCITRAL Model Law on Electronic
Commerce (MLEC) aims to enable the commercial
use of modern means of communications and
storage of information.
• It is based on the three fundamental principles of
technology neutrality, non discrimination and
functional equivalence in electronic media for paper-
based concepts such as "writing", "signature" and
"original".
• It also establishes rules for the formation and
validity of contracts concluded electronically and for
the attribution and retention of data messages.
• Enacted in over 70 States.
UNCITRAL Model Law on Electronic Commerce (MLEC)
UNCITRAL United Nations Commission on International Trade Law
• The UNCITRAL Model Law on Electronic
Signatures (MLES) aims at bringing additional legal
certainty to the use of electronic signatures.
• It establishes criteria of technical reliability for the
equivalence between electronic and hand-written
signatures.
• It follows a technology-neutral approach, which
avoids favoring the use of any specific technical
product.
• It establishes basic rules for assessing possible
responsibilities and liabilities for the signatory, the
relying party and trusted third parties intervening in
the signature process.
• Enacted in over 30 States.
UNCITRAL Model Law on Electronic Signatures (MLES)
UNCITRAL United Nations Commission on International Trade Law
• The e-CC builds up on and updates the
provisions of UNCITRAL Model Laws.
• It aims at enhancing legal certainty and
commercial predictability where electronic
communications are used across borders.
• The e-CC contributes to enabling paperless
trade by, among others: 1) validating the legal
status of electronic transactions by setting
general functional equivalence requirements of
“writing”, “original” and “signature”; 2)
preventing medium and technology
discrimination; 3) enabling cross-border
recognition of electronic signatures; 4)
permitting the use of electronic means in
alternative dispute resolution mechanisms.
• Status: 18 signatories, 9 State parties.
UN Electronic Communications Convention (e-CC)
UNCITRAL United Nations Commission on International Trade Law
• Adopted in July 2017, the MLETR legally
enables the use of electronic transferable
records, which are electronic equivalents of
documents or instruments incorporating the right
to delivery of goods or payment of sums of
money (bills of lading; bills of exchange;
warehouse receipts; promissory notes).
• Technology-neutral and specifically compatible
with the use of blockchain.
• The MLETR allows to issue a single electronic
record replacing transport, finance and customs
documents.
• The MLETR enables paperless trade facilitation
since bills of lading contain accurate, updated
and complete information on the goods shipped
and are therefore valuable data sources for
single window submissions.
UNCITRAL Model Law on Electronic Transferable
Records (MLETR)
UNCITRAL United Nations Commission on International Trade Law
Fundamental principlesunderlying UNCITRAL texts
UNCITRAL United Nations Commission on International Trade Law
A communication shall not be denied validity on the sole ground
that it is in electronic form.
Conclusion of contract
(Writing, Signature)
Non-discrimination against electronic communications
UNCITRAL United Nations Commission on International Trade Law
• Establishes criteria under which purposes and functions of
paper-based requirements (e.g. writing, signature, original,
archived) may be satisfied.
Functional equivalence
UNCITRAL United Nations Commission on International Trade Law
• Different technologies (EDI, e-mail, Internet, instant messaging, fax,
etc.) should receive equal legislative treatment.
• This approach prevents barriers to the use of future technologies.
• Issue with PKI-based electronic signatures.
EmailInstant
MessagingSMS & MMS
Future Technology
Technology neutrality
UNCITRAL United Nations Commission on International Trade Law
Party autonomy
Parties should be free to choose:
• whether to use (or not) electronic communications;
• the technology and security level appropriate for their
transactions.
UNCITRAL United Nations Commission on International Trade Law
UNCITRAL texts on e-commerce in the EU
• A number of provisions have been inserted in UNCITRAL texts to
facilitate the use of electronic communications in various fields
(e.g., arbitration, public procurement, maritime transport).
• UNCITRAL texts on electronic commerce are widely considered
as global standards in all regions of the world except Europe;
– Why?
– Is this creating a barrier to electronic commercial exchanges
between EU and non-EU States?
UNCITRAL United Nations Commission on International Trade Law
Example: e-commerce directive (2000/31/EC)
• Article 9. Treatment of contracts
– 1. Member States shall ensure that their legal system allows
contracts to be concluded by electronic means. Member States shall
in particular ensure that the legal requirements applicable to the
contractual process neither create obstacles for the use of electronic
contracts nor result in such contracts being deprived of legal
effectiveness and validity on account of their having been made by
electronic means.
(Principle of non discrimination of electronic means)
• Recital 58
– This Directive is without prejudice to the results of discussions within
international organisations (amongst others WTO, OECD,
UNCITRAL) on legal issues.
UNCITRAL United Nations Commission on International Trade Law
Example: e-IDAS (EU Regulation 910/2014)
• Recital 27
– This Regulation should be technology-neutral. The legal effects it grants should be
achievable by any technical means provided that the requirements of this
Regulation are met.
(Principle of technology neutrality)
• Recital 49
– This Regulation establishes the principle that an electronic signature should not
be denied legal effect on the grounds that it is in an electronic form or that it does
not meet the requirements of the qualified electronic signature. However, it is for
the national law to define the legal effect of electronic signatures, except for the
requirement provided in this Regulation according to which a qualified electronic
signature should have the equivalent legal effect of a handwritten signature.
(Principle of non discrimination + principle of functional equivalence)
• Article 2
– 2. This Regulation does not apply to the provision of trust services used
exclusively within closed systems resulting from national legislation or from
agreements between a defined set of participants.
(Principle of party autonomy)
UNCITRAL United Nations Commission on International Trade Law
Example: e-IDAS international aspects
• Article 14. International aspects
– 1. Trust services provided by trust service providers established in a third
country shall be recognised as legally equivalent to qualified trust services
provided by qualified trust service providers established in the Union if the
trust services originating from the third country are recognised under an
agreement concluded between the Union and third countries or international
organisations in accordance with Article 218 TFEU.
• Recital 67
– […] this Regulation should not impede the use of other means or methods to
authenticate a website not falling under this Regulation nor should it prevent
third country's providers of website authentication services from providing
their services to customers in the Union. However, a third country’s provider
should only have its website authentication services recognised as qualified
ones, according to this Regulation, if an international agreement between the
Union and the country of establishment of the provider has been concluded.
UNCITRAL United Nations Commission on International Trade Law
Czech law on e-commerce
• Czech law on e-commerce seems to be limited to the enactment
of European Community law
– Discussion on advanced and qualified electronic signatures
but a number of commercial and non-commercial transactions
do not use them
• No adoption of UNCITRAL texts or enactment of the fundamental
principles underlying them
– What about rules on e-contracting?
– What about transactions with commercial partners outside the
EU?
– Would the adoption of UNCITRAL texts bring legal clarity and
predictability?
– Would the adoption of UNCITRAL texts promote the use of
electronic means in trade?
UNCITRAL United Nations Commission on International Trade Law
Recent developments and opportunities to support innovation
UNCITRAL United Nations Commission on International Trade Law
The e-CC as global e-commerce enabler
• The Convention establishes a common legislative core for cross-
border transactions.
• It explicitly enables smart contracts by recognizing the use of
automated message systems (art. 12 e-CC):
– The contract is valid and enforceable also when no natural
person reviewed or intervened in the actions carried out by the
automated message system.
• It facilitates the use of electronic communications across borders,
in particular:
– in connection with treaties concluded before the wide diffusion
of electronic means; and
– with respect to cross-border recognition of electronic
signatures.
• It is a fundamental component of the second generation of e-
commerce laws (“UNCITRAL e-commerce law 2.0”).
UNCITRAL United Nations Commission on International Trade Law
The MLETR as fintech enabler
• Commission decided in 2011 to deal with ETR
• Few existing national texts with different approach and
content:
– Most of the existing laws are technology-specific and/or
establishing ETR not based on functional equivalence;
– All existing laws deal with only one type of transferable
document or instrument;
• This approach may be effective at the domestic level
but does not promote cross-border use of ETR and
business process reengineering.
• Model Law on ETR with explanatory note adopted by
Commission in 2017.
• The MLETR is a fundamental component of “UNCITRAL e-
commerce law 2.0”
– Public consultation for its adoption has been conducted in
Singapore.
UNCITRAL United Nations Commission on International Trade Law
Fundamental features of the MLETR
• Technology neutrality:
– compatible with registry-, token- and blockchain based
systems.
• Built around functional equivalence rules
– does not affect substantive law and party autonomy as
applicable to the corresponding document or instrument
• All that may be done on paper is possible with an ETR
– amendment, reissuance, division and consolidation,
issuance in multiple originals.
• No additional information requirements, but possible to add
additional dynamic information if so wished
– smart contracts enabler.
• ETR may circulate by delivery or delivery + endorsement
– Anonymity for the purpose of chain of transfer is possible.
UNCITRAL United Nations Commission on International Trade Law
MLETR and business process re-engineering
• Dematerialisation of commercial documents does not imply
that business processes shall remain as they are
– Rather, it provides an occasion to reengineer
• The MLETR allows to include all information relevant for
cross-border trade in a single electronic record.
• That information may be selectively shared with all business
partners.
• The data contained therein offers the highest quality as it
provides a high level of reliability of being:
– Complete;
– Updated;
– Authentic (i.e. attributable to the purported originator).
UNCITRAL United Nations Commission on International Trade Law
Vision: what may come next?
• Dematerialisation of certain commercial documents is a
necessity
– Example of Bank Payment Obligations (BPO)
• The commercial transaction is one: do we really need to
create several commercial documents?
• Efficient and effective supply chain management may foresee
merging finance and transport commercial documents
– Possibly, on a third-party platform.
– Maybe using blockchain – but see here
• Information may be re-used for regulatory purposes
– Will regulation drive innovation?
• The MLETR and the e-CC, and more generally UNCITRAL e-
commerce law 2.0, are enablers of that transformation.
UNCITRAL United Nations Commission on International Trade Law
Thank you! Děkuji!
For more information on the work of UNCITRAL in the area of electronic commerce, or on other
topics, please visit our web site http://www.uncitral.org/