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Сопутствующие документы Distr. GENERAL UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW ( Thirty-first session )
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UNITED NATIONS - General Assembly

 

Distr.

GENERAL

A/CN.9/450

6 April 1998

ORIGINAL: ENGLISH

UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW

Thirty-first session, New York, 1-12 June 1998

 

 

 

POSSIBLE ADDITION TO THE UNCITRAL MODEL LAW ON ELECTRONIC COMMERCE:

DRAFT PROVISION ON INCORPORATION BY REFERENCE

 

Note by the Secretariat

 

1. At various stages in the preparation of the UNCITRAL Model Law on Electronic

Commerce (hereinafter referred to as "the Model Law"), it was suggested that the

text should contain a provision to the effect of ensuring that certain terms and

conditions that might be incorporated in a data message by means of a mere

reference would be recognized as having the same degree of legal effectiveness

as if they had been fully stated in the text of the data message. That effect

was generally referred to as "incorporation by reference" (for earlier

discussion of the issue of incorporation by reference by the Commission, by the

Working Group on Electronic Commerce, and in notes prepared by the Secretariat,

see A/52/17, paras. 248-250; A/51/17, paras. 222-223; A/CN.9/446, paras. 14-24;

A/CN.9/437, paras. 151-155; A/CN.9/421, paras. 109 and 114; A/CN.9/407, paras.

100-105 and 117; A/CN.9/406, paras. 90 and 178-179; A/CN.9/360, paras. 90-95;

A/CN.9/350, paras. 95-96; A/CN.9/333, paras. 66-68; A/CN.9/WG.IV/WP.74; WP. 71,

paras 77-93; WP.69, paras. 30, 53, 59-60 and 91; WP.66; WP.65; WP.55, para.

109-113; and WP.53, paras. 77-78).

2. At its thirtieth session (1997), the Commission had before it the report of

the Working Group on the work of its thirty-first session (A/CN.9/437). With

respect to the issue of incorporation by reference, the Working Group concluded

that no further study by the Secretariat was needed, since the fundamental

issues were well known and it was clear that many aspects of battle-of-forms and

adhesion contracts would need to be left to applicable national laws for reasons

involving, for example, consumer protection and other public-policy

considerations. The Working Group was of the opinion that the issue should be

dealt with as the first substantive item on its agenda, at the beginning of its

thirty-second session (see A/CN.9/437, para. 155). The Commission endorsed the

conclusions reached by the Working Group. (1)

3. At its thirty-second session, the Working Group discussed the issue of

incorporation by reference on the basis of various texts that were proposed as

possible additions to the Model Law. That discussion is recorded in the report

on the Working Group on the work of its thirty-second session (A/CN.9/446,

paras. 14-23), together with the text of the various proposals that were

considered by the Working Group.

4. At the close of that discussion, the Working Group adopted the text of the

draft provision reproduced in Annex I to this note, decided that it should be

presented to the Commission for review and possible insertion as a new article

5bis of the Model Law, and requested the Secretariat to prepare an explanatory

note to be added to the Guide to Enactment of the Model Law (A/CN.9/446, para.

24). A draft text prepared pursuant to that decision for possible insertion in

the Guide to Enactment of the Model Law is set forth in Annex II to this note.

 

5. It may be noted that the text adopted by the Working Group embodies a

minimalist approach to the issue of incorporation by reference. Consistent with

the earlier deliberations of the Working Group (see above, para. 2), it does not

attempt to achieve any substantial unification of the existing rules of domestic

law regarding that issue. Instead, it restates in the context of incorporation

by reference the general principle of non-discrimination embodied in article 5

of the Model Law.

 

6. The text adopted by the Working Group is aimed at facilitating incorporation

by reference in electronic commerce by removing the uncertainty that might

prevail in certain jurisdictions as to whether the rules applicable to

traditional paper-based incorporation by reference also apply in an electronic

environment. Another aim of the provision is to make it clear that

consumer-protection or other national or international law of a mandatory nature

(e.g., rules protecting weaker parties in the context of contracts of adhesion)

should not be interfered with.

 

7. As currently drafted, the text presupposes a certain degree of familiarity of

enacting States with the concept of incorporation by reference. However,

although the expression "incorporation by reference" has been used consistently

by the Working Group as a concise way of referring to a complex range of legal

and factual situations, it might not convey the same meaning in all enacting

States. With a view to reducing the difficulties that may arise in the

interpretation of the text, the Commission may wish to consider whether more

descriptive language might be used. For example, consistent with the negative

formulation adopted by the Working Group, language along the following lines

might be considered:

 

"Information shall not be denied legal effect, validity or enforceability solely

on the grounds that it is not contained in the data message purported to give


rise to such legal effect, but is merely referred to in that data message."

 

Annex I

 

Draft provision possibly to be added to

the UNCITRAL Model Law on Electronic Commerce

(as adopted by the Working Group on Electronic Commerce at its thirty-second

session)

 

 

 

Article 5bis. Incorporation by reference

 

Information shall not be denied legal effect, validity or enforceability solely

on the grounds that it is incorporated by reference in a data message.

 

 

 

Annex II

 

Draft section possibly to be inserted in the Guide to Enactment

of the UNCITRAL Model Law on Electronic Commerce

(prepared by the Secretariat pursuant to a decision made by

the Working Group on Electronic Commerce at its thirty-second session)

 

 

 

Article 5bis. Incorporation by reference

 

Article 5bis is intended to provide guidance as to how legislation aimed at

facilitating the use of electronic commerce might deal with the situation where

certain terms and conditions, although not stated in full but merely referred to

in a data message, might need to be recognized as having the same degree of

legal effectiveness as if they had been fully stated in the text of that data

message. Such recognition is acceptable under the laws of many States with

respect to conventional paper communications, usually with some rules of law

providing safeguards, for example rules on consumer protection. The expression

"incorporation by reference" is often used as a concise means of describing

situations where a document refers generically to provisions which are detailed

elsewhere, rather than reproducing them in full.

 

In an electronic environment, incorporation by reference is often regarded as

essential to widespread use of electronic data interchange (EDI), electronic

mail, digital certificates and other forms of electronic commerce. For example,

electronic communications are typically structured in such a way that large

numbers of messages are exchanged, with each message containing brief

information, and relying much more frequently than paper documents on reference

to information accessible elsewhere. In electronic communications, practitioners

should not be placed under the burdensome obligation to overload their data

messages with quantities of free text when they can take advantage of extrinsic

sources of information, such as databases, code lists or glossaries, by making

use of abbreviations, codes and other references to such information.

 

Standards for incorporating data messages by reference into other data messages

may also be essential to the use of public key certificates, because these

certificates are generally brief records with rigidly prescribed contents that

are finite in size. The trusted third party which issues the certificate,

however, is likely to require the inclusion of relevant contractual terms

limiting its liability. The scope, purpose and effect of a certificate in

commercial practice, therefore, would be ambiguous and uncertain without

external terms being incorporated by reference. This is the case especially in

the context of international communications involving diverse parties who follow

varied trade practices and customs.

 

The establishment of standards for incorporating data messages by reference into

other data messages is critical to the growth of a computer-based trade

infrastructure. Without the legal certainty fostered by such standards, there

might be a significant risk that the application of traditional tests for

determining the enforceability of terms that seek to be incorporated by

reference might be ineffective when applied to corresponding electronic commerce

terms because of the differences between traditional and electronic commerce

mechanisms.

 

While electronic commerce relies heavily on the mechanism of incorporation by

reference, the accessibility of the full text of the information being referred

to may be considerably improved by the use of electronic communications. For

example, a message may have embedded in it uniform resource locators (URLs),

which direct the reader to the referenced document. Such URLs can provide

"hypertext links" allowing the reader to simply direct a pointing device (such

as a mouse) on a key word associated with a URL. The referenced text would then

be displayed. In assessing the accessibility of the referenced text, factors to

be considered may include: availability (hours of operation of the repository

and ease of access); cost of access; integrity (verification of content,

authentication of sender, and mechanism for communication error correction); and

the extent to which that term is subject to later amendment (notice of updates;

notice of policy of amendment).

 


One aim of article 5bis is to facilitate incorporation by reference in an

electronic context by removing the uncertainty prevailing in many jurisdictions

as to whether the provisions dealing with traditional incorporation by reference

are applicable to incorporation by reference in an electronic environment.

However, in enacting article 5bis, attention should be given to avoid

introducing more restrictive requirements with respect to incorporation by

reference in electronic commerce than might already apply in paper-based trade.

 

Another aim of the provision is to recognize that consumer-protection or other

national or international law of a mandatory nature (e.g., rules protecting

weaker parties in the context of contracts of adhesion) should not be interfered

with. That result could also be achieved by validating incorporation by

reference in an electronic environment "to the extent permitted by law", or by

listing the rules of law that remain unaffected by article 5bis. For example, in

a number of jurisdictions, existing rules of mandatory law only validate

incorporation by reference provided that the following three conditions are met:

(a) the reference clause should be inserted in the data message; (b) the

document being referred to, e.g., general terms and conditions, should actually

be known to the party against whom the reference document might be relied upon;

and (c) the reference document should be accepted, in addition to being known,

by that party.

 

References A/53/17, paras. -- ;

A/CN.9/446, paras. 14-24;

A/CN.9/WG.IV/WP.74;

A/52/17, paras. 248-250;

A/CN.9/437, paras. 151-155;

A/CN.9/WP. 71, paras 77-93;

A/51/17, paras. 222-223;

A/CN.9/421, paras. 109 and 114;

WP.69, paras. 30, 53, 59-60 and 91;A/CN.9/407, paras. 100-105 and 117;

A/CN.9/WG.IV/WP.66;

A/CN.9/WG.IV/WP.65;

A/CN.9/406, paras. 90 and 178-179;

A/CN.9/WG.IV/WP.55, para. 109-113;

A/CN.9/360, paras. 90-95;

A/CN.9/WG.IV/WP.53, paras. 77-78;

A/CN.9/350, paras. 95-96;

A/CN.9/333, paras. 66-68.

 

 

 

 

 

 

 

 

 

 

1. Official Records of the General Assembly, Fifty-second Session, Supplement

No. 17(A/52/17), paras. 249-251.


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