Главная

Болонский процесс. Автоматизация учебного процесса - Офис методиста

Сопутствующие документы GENERAL UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW ( Twenty-ninth session )
описание | темы | ключевые слова 

A/CH.9/421Distribution

GENERAL

A/CN.9/421

14 March 1996

ORIGINAL: ENGLISH

UNITED NATIONS COMMISSION ON

INTERNATIONAL TRADE LAW

Twenty-ninth session

New York, 28 May-14 June 1996

REPORT OF THE WORKING GROUP ON ELECTRONIC DATA INTERCHANGE (EDI)

ON THE WORK OF ITS THIRTIETH SESSION

(Vienna, 26 February-8 March 1996)

 

CONTENTS

ParagraphsPage

INTRODUCTION 1-24 3

I. DELIBERATIONS AND DECISIONS 25 7

II.CONSIDERATION OF LEGAL ISSUES OF MARITIME TRANSPORT

IN AN ELECTRONIC ENVIRONMENT 26-52 7

A. Negotiable and non-negotiable transport documents 27-39 8

General remarks 27-28 8

Legal regime 29-36 8

Multiple originals 37-38 11

Combination of paper documents

and dematerialized equivalents 39 11

B. Registries 40-48 12

C. Digital signatures 49-52 13

III.CONSIDERATION OF DRAFT MODEL STATUTORY PROVISIONS

ON MARITIME TRANSPORT DOCUMENTS

IN AN ELECTRONIC ENVIRONMENT 53-103 14

Draft article "x". Contracts of carriage involving data messages5314

A. General remarks 54-63 15

1. Scope of draft article "x". 55-58 15

ParagraphsPage

2. Relationship of draft article "x" with other provisions

of the draft Model Law 59-60 16

3. Possible extension of the principles embodied

in draft article "x" 61-62 17

4. Substance of draft article "x" 63 17

B. Individual provisions of draft article "x" 64-83 18

Paragraph (1) 64-66 18

Paragraph (2) 67-71 18

Paragraph (3) 72-77 20

Paragraph (4) 78-80 21

Paragraph (5) 81-82 22

Paragraph (6) 83 22

C. Additional provisions proposed for insertion

in draft article "x" 84-103 22

Application of laws or international transport conventions 84-88 22

Negotiable or non-negotiable character of the rights

contained in, or evidenced by, data messages 89-91 24

3. Situations where paper documents and data messages

might be used simultaneously 92-103 24

IV.PRELIMINARY DISCUSSION OF POSSIBLE FUTURE WORK 104-119 27

A. Future work on issues of transport law other than

those concerning EDI 104-108 27

B. Future work on specific issues regarding the use of EDI

and related means of communication 109-119 28

Possible standards for digital signatures 110-111 28

Issues of registries 112-113 28

Incorporation by reference 114 29

Information service providers 115-117 29

Review of existing international conventions 118-119 29

Annex

Text proposed for addition to the draft UNCITRAL Model Law on Legal Aspects

of Electronic Data Interchange (EDI) and Related Means of Communication

(as approved by the UNCITRAL Working Group on Electronic Data Interchange

at its thirtieth session, held at Vienna, from 26 February to 8 March 1996) 31

INTRODUCTION

Pursuant to a decision taken by the Commission at its twenty-fifth session

<1>, in 1992, the Working Group on Electronic Data Interchange devoted its

twenty-fifth to twenty-eighth sessions to the preparation of the draft

UNCITRAL Model Law on Legal Aspects of Electronic Data Interchange and Related

Means of Communication (reports of those sessions are found in A/CN.9/373,

387, 390 and 406). The text of the draft Model Law, together with a

compilation of comments by Governments and interested organizations

(A/CN.9/409 and Add. 1 to 3) was placed before the Commission at its

twenty-eighth session for review and adoption.

At its twenty-ninth session, the Working Group considered a draft Guide to

Enactment of the Model Law (the report of that session is found in

A/CN.9/407). The Working Group also considered in the context of a general

debate on possible future work the issues of incorporation by reference and of

negotiability of rights in goods in an electronic environment. As regards

incorporation by reference, the Working Group had before it two proposals for

a draft provision, one submitted by the observer for the International Chamber

of Commerce (A/CN.9/WG.IV/WP.65) and another submitted by the United Kingdom

of Great Britain and Northern Ireland (A/CN.9/WG.IV/WP.66). After discussion,

the prevailing view was that the issue of incorporation by reference was not

mature for inclusion in the Model Law and deserved further study. A view was

expressed that the issue should be addressed in the context of future work on

negotiability of rights in goods (A/CN.9/407, paras. 100 to 105).

With respect to the issues of negotiability and transferability of rights in

goods in an EDI context, the Working Group had before it two brief notes, one


submitted by the United Kingdom of Great Britain and Northern Ireland

(A/CN.9/WG.IV/WP.66) and another submitted by the United States of America

(A/CN.9/WG.IV/WP.67).

It was noted that the functions of bills of lading that might be affected by

the use of EDI communications included those of serving: (1) as a receipt for

the cargo by the carrier; (2) as evidence of the contract of carriage with

regard to its general terms and the particular details of vessel, loading and

discharge ports, and nature, quantity and condition of the cargo; and (3) as a

document giving the holder a number of rights, including the right to claim

and receive delivery of the goods at the port of discharge and the right to

dispose of the goods in transit.

The first two functions could be easily performed by EDI since the receipt for

the cargo and information about the contract of carriage could be given by

means of data messages such as the UN/EDIFACT messages. However, the third

function (as document of title) raised difficulties in an EDI environment

since, in the absence of a single piece of paper, it was difficult to

establish the identity of the exclusive holder to whom the carrier could

deliver the goods without running the risk of being faced with a claim by

another party for misdelivery. In that regard, the Working Group noted that a

central problem in the use of EDI bills of lading was to guarantee the

singularity, or uniqueness, of the message to be relied upon by the carrier

for delivering the goods. While any data message could probably be rendered

unique through the use of cryptography, the possibility that the message might

be fraudulently or mistakenly multiplied could not be excluded. The Working

Group noted that solutions to that problem might be found in security,

time-stamping or similar techniques or through a central registry in which the

holder could register its rights.

The Working Group also noted that work on negotiability and transferability of

documents of title in goods by EDI means could include establishing a

preliminary list of areas of commercial practice to be covered, validating

agreements for negotiability and transferability of rights in goods through

EDI, establishing criteria for parties to be holders in due course for the

transfer of rights in goods or subsequently to negotiate such rights through

EDI, determining the effect of negotiation of documents of title in EDI,

establishing default rules for allocation of risk and electronic registries.

With regard to electronic registries, it was noted that they could be

governmental, central or private. The purpose, the access, the administrator,

the costs, the insurance, the allocation of risks and the security could vary

depending on the nature of the registry.

The Working Group engaged in a general debate, with a view to identifying the

scope of possible future work and issues that could be addressed. With regard

to the scope of future work, one suggestion was that the work should cover

multimodal transport documents of title since they essentially fulfilled the

same functions and raised similar issues. Another suggestion was that, while

work could include transport documents of title in general, particular

emphasis should be placed on maritime bills of lading since the maritime

transport area was the area in which EDI was predominantly practised and in

which unification of law was urgently needed in order to remove existing

impediments and to allow the practice to develop.

In support, it was pointed out that EDI messaging was currently restricted to

the exchange of information messages in the North Atlantic maritime routes and

could not develop without the support of a legal regime that would validate,

and provide certainty about, transport documents in electronic form. For

example, it was stated that there was a need to facilitate delivery of the

cargo at the port of discharge without production of a paper bill of lading,

which was often necessary for a number of reasons. One reason was that the

cargo might reach the port of discharge before the documents necessary for

delivery. Another reason was that often the buyer had to receive delivery and

sell the cargo in order to be able to pay the price of the cargo and the

freight. In addition, it was stated that there was a need to remove the legal

uncertainty as to who bore the risk of the cargo not corresponding to its

description when discharged. It was pointed out that usually the shipper

provided the description of the goods and the bill of lading included a

disclaimer that the description was that of the shipper; such disclaimer

clauses were not always valid. Moreover, it was stated that there was a need

to establish a functional equivalent replicating the uniqueness of the paper

bill of lading, which was essential for its function as a title document.

Other suggestions were to address all documents of title covering tangible

goods (e.g., warehouse receipts), or all documents of title covering tangible

and intangible goods, or all negotiable (or even non-negotiable) instruments.

In opposition to those suggestions, it was pointed out that covering such a

broad range of documents would complicate work since the functions of the

respective documents were different, which would make the elaboration of

specific rules necessary.

After discussion, it was agreed that future work could focus on EDI transport

documents, with particular emphasis on maritime electronic bills of lading and

the possibility of their use in the context of the existing national and

international legislation dealing with maritime transport. After having

established a set of rules for the maritime bills of lading, the Working Group

could examine the question whether issues arising in multimodal transport

could be addressed by the same set of rules or whether specific rules would

need to be elaborated.

The Working Group then turned to a discussion of possible issues that could be

addressed in the context of future work on maritime bills of lading. A number

of issues were mentioned. One issue was to ensure the uniqueness of an

electronic bill of lading that would allow its "holder" to dispose of the

cargo in transit by electronic means while protecting the carrier from the

risk of misdelivery. A number of possible ways to address that issue were

suggested, including private keys to be used in communications from party to

party, electronic certificates, smartcards and registries. With regard to

registries, it was pointed out that a legal regime would need to be devised

addressing issues such as subject of registration, parties that could

register, parties that would have access to the registry and towards whom the

registration could produce effects, confidentiality, accuracy and completeness

of the information registered, liability for errors and effects on third


parties.

Another issue was the definition of the holder in an EDI environment. It was

pointed out that in a paper context the holder was defined on the basis of

physical possession of the paper bill of lading and was protected against good

faith acquisition of rights in the goods by third parties in that possession

of the bill of lading functioned as notice to third parties. In an EDI

environment, where possession was not possible, the holder might be protected

by other means (e.g., registration, use of public and private key sets) or

might not be protected at all. Another issue involved the rights and

obligations of the holder and the issuer of EDI transport documents (e.g.,

right of the holder to give instructions in transit and obligation of the

issuer to receive and execute those instructions). It was pointed out that, in

a paper-based environment, the rights of a holder were based on three

principles: (1) the bill of lading was conclusive evidence of title in the

goods only after endorsement (conclusive evidence rule); (2) the endorsee was

the only party entitled to claim delivery of the cargo at the discharge point;

and (3) only the endorsee was entitled to instruct the carrier to vary the

contract and make another endorsement. In this respect, it was stated that

negotiability needed to be studied in the context of trade law, security law

and transportation law. It was explained that property would not be of use if

acquired under trade law but effectively lost under transportation law because

no right of stoppage or control could be exercised.

In addition, it was pointed out that the holder could have a right to possess

the goods, a property right in the goods, or a right to receive delivery of

the goods arising from a sales contract. It was explained that from the point

of view of the carrier the most important question was who had possessory

title in the goods, in other terms, to whom should the carrier deliver the

goods. Yet another issue was the allocation of liability among the shipper,

carrier, consignee and, possibly, a registry.

Other issues suggested for study were: the effects of transfer of EDI

transport documents on third parties (e.g., when transfer is effective towards

the carrier, third parties in the chain of endorsees, third parties not shown

in the EDI bill of lading); the rights of the rightful holder in case of a

wrongful transfer of the goods and the rights of the transferee in case its

title proved to be defective (subject to other parties' rights); timeliness of

transfer in an EDI environment; relative priority among multiple claimants of

the same cargo; timeliness of messages (e.g., some messages related to pre-

contractual terms might create rights and obligations); incorporation by

reference; issues of security (principles of identification, authentication,

integrity, non-repudiation) designed to promote negotiability in an open EDI

environment. It was stated that the issues of security should be considered

with respect to a broad range of issues regarding negotiability. In connection

with its discussion of security issues, in particular the use of cryptography,

the Working Group agreed that possible future work by UNCITRAL should not

affect mandatory rules of national legislation adopted for public policy

reasons in certain States to restrict the use of cryptography or the export of

cryptography-related techniques.

After discussion, the Working Group requested the Secretariat to prepare a

background study on negotiability and transferability of EDI transport

documents, with particular emphasis on EDI maritime transport documents,

taking into account the views expressed and the suggestions made with regard

to the scope of future work and the issues that could be addressed. A number

of other topics were suggested for inclusion in the study, including a report

on the potential problems for the use of EDI in maritime transport under

existing international instruments and a report on the work undertaken by

other organizations in related areas of work. In that connection, the view was

expressed that work under

 

 


На правах рекламы: