Exploratory seminar on e-signatures for e-business Transactions. South Mediterranean Region

Transcription

1 Exploratory seminar on e-signatures for e-business Transactions South Mediterranean Region Jae Sung LEE Legal Officer, Office of Legal Affairs United Nations

2 When and why was established?

3 Composition of 60 member States elected by the General Assembly considering geographical regions and levels of economic development Non-member States participate as observer States and no difference in deliberation Intergovernmental organizations as well as international non-governmental organizations participate as observers Term of 6 years with half (30) of the members reelected or replaced every 3 years (elections to be held on Nov 12, 2012)

4 Organization of work The Commission Working Groups The Secretariat

5 United Nations Org Structure United Nations System

6 6 Working Groups The Commission Working Groups The Secretariat I. Micro, medium & small-sized enterprises II. Arbitration III. Online Dispute Resolution IV. Electronic Commerce V. Insolvency Law VI. Security Interests Two sessions per year alternating between New York (spring) and Vienna (fall)

7 Texts Convention Model Law Legislative Guide Negotiated with universal participation and reflect balance of national, regional, economic, legal and other interest Drafted with a view to ensure compatibility with the various legal traditions including Islamic law Methods operate at different levels and involve different types of compromise or acceptance Move from a hard law to soft law

8 Texts Convention Model Law Legislative Guide Conventions -Designed to unify law by establishing binding legal obligations Model Law -A legislative text recommended to States for enactment as part of their domestic law Legislative Guide -A set of principles and legislative recommendations for legislators to consider in their enactment of domestic law

9 Examples of Conventions

10 Examples of Model law

11 Examples of Legislative Guides

12 texts: Electronic Commerce

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14 Texts on Electronic Commerce 1996 Model Law on Electronic Commerce (MLEC) 2001 Model Law on Electronic Signatures (MLES) 2005 United Nations Convention on the Use of Electronic Communications in International Contracts (ECC) 2007 Promoting confidence in electronic commerce: legal issues on international use of electronic authentication and signature methods Provides comprehensive legal framework for electronic transactions More information available at e.html

15 Texts on Electronic Commerce Provides comprehensive legal framework for electronic transactions Based on the following underlying principles: Non-discrimination Functional equivalence Technological neutrality Party autonomy

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19 Model Law on E-commerce

20 Article 7. Signatures (1) Where the law requires a signature of a person, that requirement is met in relation to a data message if: (a) a method is used to identify that person and to indicate that person s approval of the information contained in the data message; and (b) that method is as reliable as was appropriate for the purpose for which the data message was generated or communicated, in the light of all the circumstances, including any relevant agreement. (2) Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the absence of a signature.

21 Legislation implementing the MLEC has been adopted in: Australia (1999), Bahrain (2002), Brunei (2000), Canadian territories, China (2004), Colombia (1999), Dominican Republic (2002), Ecuador (2002), France (2000), Guatemala (2008), India (2000), Ireland (2000), Jamaica (2006), Iran (2004), Jordan (2001), Mauritius (2000), Mexico (2000), New Zealand (2002), Pakistan (2002), Panama (2001), Philippines (2000), Republic of Korea (1999), Qatar (2010), Saudi Arabia (2007), Singapore (1998), Slovenia United Nations (2000), Commission South Africa on International (2002), Trade Sri Lanka Law (2006), Thailand (2002), UAE (2006), certain USA States, Venezuela (2001),Vietnam (2005) and few others.

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23 Article 2. Definitions (a) Electronic signature means data in electronic form in, affixed to or logically associated with, a data message, which may be used to identify the signatory in relation to the data message and to indicate the signatory s approval of the information contained in the data message; Article 3. Equal treatment of signature technologies Nothing in this Law, except article 5, shall be applied so as to exclude, restrict or deprive of legal effect any method of creating an electronic signature that satisfies the requirements referred to in article 6, paragraph 1, or otherwise meets the requirements of applicable law.

24 Article 6. Compliance with a requirement for signature 1. Where the law requires a signature of a person, that requirement is met in relation to a data message if an electronic signature is used that is as reliable as was appropriate for the purpose for which the data message was generated or communicated,. 3. An electronic signature is considered to be reliable if: (a) The signature creation data are, within the context in which they are used, linked to the signatory and to no other person; (b) The signature creation data were, at the time of signing, under the control of the signatory and of no other person; (c) Any alteration to the electronic signature, made after the time of signing, is detectable; and (d) Where a purpose of the legal requirement for a signature is to provide assurance as to the integrity of the information to which it relates, any alteration made to that information after the time of signing is detectable.

25 Legislation implementing the MLES has been adopted in: Barbados (2001), Cape Verde (2003), China (2004), Costa Rica (2005), Ghana (2008), Guatemala (2008), India (2009), Jamaica (2006), Mexico (2003), Nicaragua (2010), Paraguay (2010), Qatar (2010), Rwanda (2010), Saint Lucia (2011), St. Vincent and the Grenadines (2007), Saudi Arabia (2007), Thailand (2002), Trinidad and Tobago (2011), UAE (2006), Viet nam (2005) and Zambia (2009).

26 Electronic Communications Convention

27 Entry into force of the ECC Entry into force on 1 March 2013 States parties: Dominican Republic, Honduras& Singapore 16 other signatories (Central African Republic, China, Colombia, Iran, Lebanon, Madagascar, Montenegro, Panama, Paraguay, Philippines, Republic of Korea, Russia, Saudi Arabia, Senegal, Sierra Leone, Sri Lanka) Australia, Thailand, Sri Lanka have declared intention to adopt Other States have adopted substantive provisions of the ECC domestically

28 Article 9. Form requirements 3. Where the law requires that a communication or a contract should be signed bya party, or provides consequences for the absence of a signature, that requirement is met in relation to an electronic communication if: (a) A method is used to identify the party andto indicate that party s intention in respect of the information contained in the electronic communication; and (b) The method used is either: (i) As reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or (ii) Proven in fact to have fulfilled the functions described in subparagraph (a) above, by itself or together with further evidence.

29 Promoting confidence in electronic commerce (2007) Analyzes main legal issues regarding Signatures and authentication methods Cross-border use of electronic signatures and authentication methods Part 2 focuses on international use of digital signatures under a PKI (not a recommendation)

30 Current agenda of Working Group IV Draft provisions on electronic transferable records (electronic cheques, promissory notes, bills of lading ) Identity management considered as a sub-topic More information available at tronic_commerce.html

31 UN CEFACT Recommendation 14 UN Centre for Trade Facilitation and Electronic Business under the auspices UN Economic Commission for Europe Revision of the outdated recommendation 14 on authentication of trade documents Revised draft finalized and under public review Recommends (i) removal of signature requirement (ii) electronic authentication methods of equal status and (iii) regular review.

32 For more information, please visit the web or me at jaesung.lee@uncitral.org