Electronic Communications Convention as trade facilitation legal framework

Transcription

1 Electronic Communications Convention as trade facilitation legal framework Jin Ho KIM Legal Expert Regional Centre for Asia and the Pacific 13 Decemeber 2016, Incheon

2 Outline 1. and its Regional Centre for Asia and the Pacific 2. texts on electronic commerce 3. Fundamental legislative principles 4. e-cc: policy goals 5. e-cc: main provisions 6. e-cc relevance for trade facilitation-global Trend, Regional and Country development 7. Current and Future work by Working Group IV 1

3 When and why was established? United Nations Commissions on International Trade Law () Established by United Nations General Assembly in 1966 Core legal body of the UN system in the field of private international trade/commercial law MANDATE: Progressive harmonization and modernization of international trade law by preparing and promoting the use of legislative instruments in key areas of commercial law 2

4 RCAP The first Regional office of, opened on 10 January 2012 Located in Incheon, Republic of Korea Covers 56 States of the Asia- Pacific region including Australia and New Zealand 3

5 texts 0n electronic commerce 5

6 Adopted by on 12 June 1996 The Model Law on Electronic Commerce (MLEC) is intended to enable the commercial use of modern means of communications and storage of information. The MLEC is based on the establishment of a functional equivalence in electronic media for paper-based concepts such as "writing", "signature" and "original". The MLEC also establishes rules for the formation and validity of contracts concluded electronically and for the attribution and retention of data messages. Enacting States: 67 States - Malaysia, Singapore, Brunei, China, India, UK, USA, Australia, New Zealand, Qatar, Republic of Korea etc 6

7 Adopted by on 5 July 2001 The Model Law on Electronic Signatures (MLES) aims at bringing additional legal certainty to the use of electronic signatures. The MLES establishes criteria of technical reliability for the equivalence between electronic and hand-written signatures. The MLES follows a technology-neutral approach, which avoids favouring the use of any specific technical product. The MLES establishes basic rules for assessing possible responsibilities and liabilities for the signatory, the relying p arty and trusted third parties intervening in the signature process. Enacting States: 32 States - China, India, Viet Nam, Thailand, Bhutan, UK, Qatar, Saudi Arabia etc. 7

8 Adopted by the General Assembly on 23 November 2005 The Electronic Communications Convention (e- CC) builds up on and updates the provisions of both Model Laws. 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 crossborder recognition of electronic signatures; 4) permitting the use of electronic means in alternative dispute resolution mechanisms The e-cc aims at enhancing legal certainty and commercial predictability where electronic communications are used across borders. The e-cc entered into force on 1 March

9 (Continued) The e-cc entered into force on 1 March 2013 Parties to e-cc (7) - Singapore, Sri Lanka, Russian Federation, Congo, Dominican Republic, Honduras, Montenegro Signatories to e-cc (18) - China, Republic of Korea, Iran, Philippines, Saudi Arabia etc. Several other States have enacted its substantive provisions domestically - Australia, Viet Nam, Zambia, Ghana, Guatemala, Madagascar etc. 9

10 Why an international convention? Facilitate the use of electronic communications across borders Eliminate formal requirements in treaties drafted before diffusion of electronic means, thus allowing trade partners to know in advance whether electronic contracts will be upheld abroad. Promote further uniformity Despite the success of the Model Laws, enactments have seen variations on the original texts, affecting predictability. Update and complement the provisions of the Model Laws New rules have emerged in recent years whose uniform adoption is desirable. Provide core legislation for countries not having yet adopted any Several countries have no or incomplete legislation on electronic commerce. 10

11 Fundamental principles (1) Non-discrimination A communication shall not be denied validity on the sole ground that it is in electronic form. Conclusion of contract (Writing, Signature) 11

12 Fundamental principles (2) Functional equivalence Purposes and functions of paper-based requirements may be satisfied with electronic communications, provided certain criteria are met. 12

13 Fundamental principles (3) Technological neutrality Equal treatment of different technologies (EDI, , Internet, instant messaging, fax, etc.) Instant Messaging SMS & MMS Future Technology 13

14 Core provisions Article 1 Scope of application Article 2 Exclusions Artilce 5 Interpretation Article 6 Location of the parties Article 8 Legal recognition of electronic communications Article 9 Form requirements Article 10 Time and place of dispatch and receipt of electronic communications Article 11 Invitations to make offers Article 12 Use of automated message systems for contract formations Article 14 Error in electronic communications Article 20 Communications exchanged under other international conventions 14

15 e-cc relevance for trade facilitation The e-cc creates the legal framework to promote B2B exchanges. It ensures that fundamental principles of e-commerce law are recognised. It helps in harmonising domestic legislation. Against that framework, it will be easier to establish legal interoperability also for B2G and G2G transactions. For instance, it sets the conditions for recognition of foreign electronic signatures This also fulfils legal requirements contained in FTAs. 15

16 Global and Regional deveopments WTO Trade Facilitation Agreement (December 2013) The 6th APEC E-Commerce Business Alliance Forum (June 2016) encouraging the provision of an enabling legal environment based on international and regional law and other legal instruments that support cross-border e-commerce and paperless trade Framework Agreement on Facilitation of Cross-border Paperless Trade in Asia and the Pacific (19 May 2016) Encouraging the adoption of relevant international legal instruments concluded by United Nations bodies and other international organizations (Article 10.1) 16

17 Global and Regional the developments Plan of Action between ASEAN and UN ( ) Trans-Pacific Strategic Economic Partnership Agreement (Feb 2016) Each Party shall maintain a legal framework governing electronic transactions consistent with the principles of the e-cc (Article 14.5). Singapore, Brunei, New Zealand, Chile, United States, Australia, Peru, Vietnam, Malaysia, Mexico, Cananda, Japan recently signed on 4 February

18 USA- President Obama submission to Senate for consent for accession (Feb 2016) China- Working towards ratification of e-cc together with electronic commerce law revisions Australia, Viet Nam- domestic legislation ready for accession Brunei Darussalam, Thailand- interest in accession Singapore- already an e-cc contracting State Republic of Korea, Fiji- in pursuit of e-cc ratification Russian Federation - already an e-cc contracting State Mongolia -? the Country developments 18

19 Current work 0f Working Group IV Preparation and finalization of draft Model Law on Electronic Transferable Records (ETR) and the accompanying explanatory note (since 2011) Next session: New York, April 2017 Scope: Electronic equivalent of transferable document or instrument (promissory note, cheques, bills of lading, warehouse receipts ) Definition: an electronic record that complies with the requirement of Article 9. - containing the information required to be contained in a transferable document or instrument - reliable method: identification, subject to control, integrity 19

20 Future work of Working Group IV While completing the work on electronic transferable records, continue to update and conduct preparatory work on cloud computing identity management & trust services By organizing, co-organizing or participating in colloquia, workshops and other meetings within available resources 20

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