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A/51/17

United Nations

 

Report of the

United Nations Commission on

International Trade Law

on the work of its twenty-ninth session

 

28 May-14 June 1996

 

General Assembly

Official Records Fifty-first Session

Supplement No. 17 (A/51/17)

A/51/17

Report of the

United Nations Commission on

International Trade Law

on the work of its twenty-ninth session

 

28 May-14 June 1996

 

 

 

General Assembly

Official Records Fifty-first Session

Supplement No. 17 (A/51/17)

United Nations New York, 1996

 

NOTE

 

Symbols of United Nations documents are composed of capital letters combined

with figures. Mention of such a symbol indicates a reference to a United Nations

document.

ISSN 0251-9127

 

 

 

[Original: English]

 

[14 August 1996]

 

 

 

CONTENTS

 

ChapterParagraphs Page

 

INTRODUCTION ......................................... 1 - 2 1

 

I. ORGANIZATION OF THE SESSION .......................... 3 - 10 2

 

A. Opening of the session ........................... 3 2

 

B. Membership and attendance ........................ 4 - 7 2

 

C. Election of officers ............................. 8 3

 

D. Agenda ........................................... 9 3

 

E. Adoption of the report ........................... 10 4

 

II. INTERNATIONAL COMMERCIAL ARBITRATION ................. 11 - 54 5

 

A. Introduction ..................................... 11 5

 

B. Discussion of the draft Notes on Organizing

Arbitral Proceedings ............................. 12 - 51 5

 

1. Text as a whole .............................. 12 - 14 5

 

2. Introductory part (paras. 1-14) .............. 15 - 19 6

 

3. List of matters for possible consideration in


organizing arbitral proceedings .............. 20 6

 

4. Annotations (paras. 15-91) ................... 21 - 51 6

 

C. Adoption of the UNCITRAL Notes on Organizing

Arbitral Proceedings ............................. 52 - 54 11

 

III. DRAFT UNCITRAL MODEL LAW ON LEGAL ASPECTS OF

ELECTRONIC DATA INTERCHANGE (EDI) AND RELATED MEANS

OF COMMUNICATION ..................................... 55 - 224 12

 

A. Introduction ..................................... 55 - 62 12

 

1. Draft Model Law .............................. 55 - 57 12

 

2. Additional provisions concerning transport

documents .................................... 58 - 59 12

 

3. Draft Guide to Enactment of the Model Law .... 60 - 62 13

 

B. Consideration of draft articles .................. 63 - 172 13

 

 

 

CONTENTS (continued)

 

ChapterParagraphs Page

 

Article 12. Acknowledgement of receipt .......... 63 - 88 13

 

Article 13. Formation and validity of contracts . 89 - 99 20

 

Article 14. Time and place of dispatch and

receipt of data messages ............ 100 - 115 22

 

Article 2. Definitions ......................... 116 - 138 26

 

Specific rules concerning transport documents .... 139 - 172 31

 

C. Other issues to be considered with respect to the

draft Model Law .................................. 173 - 194 40

 

1. Title of the draft Model Law ................. 174 - 177 40

 

2. Footnote **** to article 1 ................... 178 - 179 41

 

3. Paragraphs (1) of articles 5, 6 and 7 ........ 180 - 181 41

 

4. Notion of "originator" in paragraph (1) of

article 6 .................................... 182 42

 

5. Rule of interpretation of contracts .......... 183 - 184 42

 

6. Notion of "rule of law" in articles 5, 6, 7

and 9 ........................................ 185 - 187 43

 

7. Location of article 10 ....................... 188 43

 

8. Article 11 ................................... 189 - 194 43

 

D. Report of the drafting group ..................... 195 - 204 44

 

E. Draft Guide to Enactment of the Model Law ........ 205 - 208 47

 

F. Adoption of the Model Law and recommendation ..... 209 48

 

G. Future work ...................................... 210 - 224 49

 

1. Future work on issues of transport law ....... 210 - 215 49

 


2. Future work with respect to electronic

commerce ..................................... 216 - 224 51

 

IV. BUILD-OPERATE-TRANSFER PROJECTS ...................... 225 - 230 53

 

V. ASSIGNMENT IN RECEIVABLES FINANCING .................. 231 - 234 55

 

VI. CROSS-BORDER INSOLVENCY .............................. 235 - 237 56

 

VII. LEGISLATIVE IMPLEMENTATION OF THE 1958 NEW YORK

CONVENTION ........................................... 238 - 243 57

 

CONTENTS (continued)

 

ChapterParagraphs Page

 

VIII. CASE-LAW ON UNCITRAL TEXTS (CLOUT) .................. 244 - 247 58

 

IX. TRAINING AND TECHNICAL ASSISTANCE ................... 248 - 254 59

 

X. STATUS AND PROMOTION OF UNCITRAL LEGAL TEXTS ........ 255 - 257 61

 

XI. GENERAL ASSEMBLY RESOLUTIONS ON THE WORK OF THE

COMMISSION .......................................... 258 - 264 63

 

XII. OTHER BUSINESS ...................................... 265 - 275 65

 

A. Reduction of documentation requirements ......... 265 65

 

B. Principles of interpretation .................... 266 65

 

C. UNCITRAL Yearbook ............................... 267 65

 

D. Cooperation with the Organization of American

States .......................................... 268 65

 

E. Bibliography .................................... 269 - 270 66

 

F. Willem C. Vis International Commercial

Arbitration Moot ................................ 271 - 272 66

 

G. Six hundredth meeting of the Commission ......... 273 66

 

H. Date and place of the thirtieth session of the

Commission ...................................... 274 66

 

I. Sessions of working groups ...................... 275 66

 

Annexes

 

I. UNCITRAL Model Law on Electronic Commerce ....................... 70

 

II. List of documents before the Commission at its twenty-ninth

session ......................................................... 78

INTRODUCTION

 

 

 

1. The present report of the United Nations Commission on International Trade

Law covers the Commission's twenty-ninth session, held in New York from 28 May

to 14 June 1996.

 

2. Pursuant to General Assembly resolution 2205 (XXI) of 17 December 1966, this

report is submitted to the Assembly and is also submitted for comments to the

United Nations Conference on Trade and Development (UNCTAD).

 

I. ORGANIZATION OF THE SESSION

 

 

 

A. Opening of the session

 


3. The United Nations Commission on International Trade Law (UNCITRAL) commenced

its twenty-ninth session on 28 May 1996. The session was opened by Mr. Hans

Corell, Under-Secretary-General for Legal Affairs, the Legal Counsel.

 

 

 

B. Membership and attendance

 

4. The General Assembly, by its resolution 2205 (XXI), established the

Commission with a membership of 29 States, elected by the Assembly. By its

resolution 3108 (XXVIII) of 12 December 1973, the General Assembly increased the

membership of the Commission from 29 to 36 States. The present members of the

Commission, elected on 4 November 1991 and on 28 November 1994, are the

following States, whose term of office expires on the last day prior to the

beginning of the annual session of the Commission in the year indicated: 1/

 

Algeria (2001), Argentina (1998), Australia (2001), Austria (1998), Botswana

(2001), Brazil (2001), Bulgaria (2001), Cameroon (2001), Chile (1998), China

(2001), Ecuador (1998), Egypt (2001), Finland (2001), France (2001), Germany

(2001), Hungary (1998), India (1998), Iran (Islamic Republic of) (1998), Italy

(1998), Japan (2001), Kenya (1998), Mexico (2001), Nigeria (2001), Poland

(1998), Russian Federation (2001), Saudi Arabia (1998), Singapore (2001),

Slovakia (1998), Spain (1998), Sudan (1998), Thailand (1998), Uganda (1998),

United Kingdom of Great Britain and Northern Ireland (2001), United Republic of

Tanzania (1998), United States of America (1998) and Uruguay (1998).

 

5. With the exception of Algeria, Cameroon, Ecuador, Saudi Arabia, the Sudan and

Uganda, all members of the Commission were represented at the session.

 

6. The session was attended by observers from the following States: Albania,

Armenia, Azerbaijan, Belize, Canada, Congo, Costa Rica, Croatia, Czech Republic,

Denmark, Eritrea, Guinea, Indonesia, Kazakstan, Kuwait, Kyrgyzstan, Lebanon,

Lesotho, Morocco, Myanmar, Namibia, Pakistan, Paraguay, Philippines, Republic of

Korea, South Africa, Swaziland, Sweden, Switzerland, Syrian Arab Republic,

Turkey, Ukraine and Yemen.

 

7. The session was also attended by observers from the following international

organizations:

 

(a) United Nations organs

 

United Nations Development Programme (UNDP)

 

(b) Intergovernmental organizations

 

Asian-African Legal Consultative Committee

 

International Institute for the Unification of Private Law (UNIDROIT)

 

Organization of American States (OAS)

 

(c) Other international organizations

 

Arab Association for International Arbitration (AAIA)

 

Cairo Regional Centre for International Commercial Arbitration

 

Caribbean Law Institute Centre

 

Comitй maritime international (CMI)

 

Grupo Latinoamericano de Abogados para el Derecho del Comercio Internacional

(GRULACI)

 

Interamerican Bar Association (IABA)

 

International Association of Ports and Harbors (IAPH)

 

International Chamber of Commerce (ICC)

 

Tribunal Internacional de Conciliaciуn y de Arbitraje del Mercosur (TICAMER)

 

Union internationale des avocats (UIA)

 

 

 


C. Election of officers 2/

 

8. The Commission elected the following officers:

 

Chairman: Mrs. Ana Isabel Piaggi de Vanossi (Argentina)

 

Vice-Chairmen: Mr. S. Thuita Mwangi (Kenya)

Mr. Jбn Varso (Slovakia)

Mr. Piyavaj Niyom-Rerks (Thailand)

 

Rapporteur: Mr. Rafael Illescas (Spain)

 

 

 

D. Agenda

 

9. The agenda of the session, as adopted by the Commission at its 583rd meeting,

on 28 May 1996, was as follows:

 

1. Opening of the session.

 

2. Election of officers.

 

3. Adoption of the agenda.

 

4. International commercial arbitration: draft Notes on Organizing Arbitral

Proceedings.

 

5. Electronic data interchange: draft Model Law; possible future work.

 

6. Build-operate-transfer (BOT) projects.

 

7. Receivables financing: assignment of receivables.

 

8. Cross-border insolvency.

 

9. Monitoring implementation of the 1958 New York Convention.

 

10. Case-law on UNCITRAL texts (CLOUT).

 

11. Training and assistance.

 

12. Status and promotion of UNCITRAL legal texts.

 

13. General Assembly resolutions on the work of the Commission.

 

14. Other business.

 

15. Date and place of future meetings.

 

16. Adoption of the report of the Commission.

 

 

 

E. Adoption of the report

 

10. At its 606th meeting, on 14 June 1996, the Commission adopted the present

report by consensus.

 

II. INTERNATIONAL COMMERCIAL ARBITRATION

 

 

 

A. Introduction

 

11. The Commission, after an initial discussion of the project at its

twenty-sixth session (1993), 3/ considered at its twenty-seventh session (1994)

a draft entitled "Draft Guidelines for Preparatory Conferences in Arbitral

Proceedings" (A/CN.9/396/Add.1). 4/ That draft was also discussed at several

meetings of arbitration practitioners, including the XIIth International

Arbitration Congress, held by the International Council for Commercial

Arbitration (ICCA) at Vienna from 3 to 6 November 1994 (see also para. 53

below). 5/ On the basis of those discussions in the Commission and elsewhere,


the Secretariat prepared "Draft Notes on Organizing Arbitral Proceedings"

(A/CN.9/410), which the Commission considered at its twenty-eighth session

(1995). 6/ On the basis of those considerations, the Secretariat prepared a

revision of the "Draft Notes on Organizing Arbitral Proceedings" (A/CN.9/423),

which was discussed and finalized by the Commission at the current session. (For

the decision on the adoption of the Notes, see paras. 52-54 below.)

 

 

 

B. Discussion of the draft Notes on Organizing

Arbitral Proceedings

 

1. Text as a whole

 

12. The Commission considered that the draft prepared by the Secretariat

(A/CN.9/423) was generally in line with the considerations at the Commission's

twenty-eighth session (1995) and that it presented a good basis for the

Commission to consider and approve the text at the current session.

 

13. The Commission reiterated its approval of the principles underlying the

drafting of the Notes, among which were that the Notes must not impinge upon the

beneficial flexibility of arbitral proceedings; that it was necessary to avoid

establishing any requirement beyond the existing laws, rules or practices, and

in particular to ensure that the sole fact that the Notes, or any part of them,

were disregarded would not lead to a conclusion that any procedural principle

had been violated or was a ground for refusing enforcement of an award; and that

the Notes should not seek to harmonize disparate arbitral practices or recommend

using any particular procedure.

 

14. A view was expressed that the non-binding nature of the Notes could better

be reflected by using in the title an expression such as "guidelines",

"suggestions" or "recommendations" rather than "Notes". It was said that the

term "Notes" had no precedent in the work of UNCITRAL and that readers might not

readily understand the nature of the text thus entitled. The Commission,

however, considered that expressions such as those suggested might lead to a

misunderstanding that the failure to use the Notes would constitute less than

good practice. The current title was thought to be more in line with the purpose

of the text, which was to be a reminder to practitioners of questions relating

to the conduct of arbitrations, and not a text expressing a value judgement as

to what practices were considered to be good.

 

 

 

2. Introductory part (paras. 1-14)

 

15. It was decided to delete the words "fundamental requirements of procedural

justice" and to reword the first sentence of paragraph 4 along the following

lines: "Laws governing the arbitral procedure and arbitration rules that the

parties may agree upon typically allow the arbitral tribunal broad discretion

and flexibility in the conduct of arbitral proceedings." The purpose of the

modification was to avoid giving the impression that the Notes attempted to

define the fundamental procedural principles to be observed in arbitration.

 

16. With respect to the reference to multi-party arbitration, the Commission

favoured variant 2, as expressed in paragraph 7.

 

17. In paragraph 9, it was agreed to add, after the words "conference telephone

calls", the words "or other electronic means".

 

18. A suggestion was made to delete in paragraph 10 the expressions "pre-hearing

conference" and "pre-hearing review". It was said that they reflected a practice

that was not universal, and that literal translations of those expressions into

some other languages were unclear. The Commission, however, thought that it was

useful to give some examples of the expressions used in practice for procedural

meetings of arbitrators and that a possible misunderstanding might be avoided by

including the English expressions "pre-hearing conference" and "pre-hearing

review" also in language versions other than English.

 

19. In paragraph 14, it was decided to add, after the words "may be limited by

arbitration rules", the words "by other provisions agreed to by the parties".

 

 

 

3. List of matters for possible consideration in

organizing arbitral proceedings

 

20. The Commission noted that the list of matters for possible consideration in

organizing arbitral proceedings (which followed the introductory part of the

Notes) had value not only as a table of contents of the Annotations but also as

an aide-mйmoire, suitable for quick reference by practitioners. No comments were

made on the substance and format of the list.

 

 

 

4. Annotations (paras. 15-91)


 

Set of arbitration rules (item 1, paras. 15-17)

 

21. It was decided to change in paragraph 15 the phrase "it would be necessary

to secure the agreement of that institution" to read "it may be necessary to

secure the agreement of that institution". The purpose of the change was to

avoid the implication that, when the parties agreed on the rules of an arbitral

institution, agreement would always have to be sought; on the other hand, the

slightly modified wording still reminded the parties that when the rules

provided that the institution might be called upon to perform certain functions

in connection with the case (e.g., the challenge or replacement of an

arbitrator, or keeping the files of the case), the parties should reach

agreement with the institution regarding the performance of those functions.

 

22. As to paragraph 17, it was observed that the phrase "on the basis of the law

governing the arbitral procedure" might be misunderstood as excluding the

possibility that a case might be governed by provisions other than a national

law on arbitral procedure. In order not to take a stand on that issue, on which

the views were not uniform, the Commission decided to delete the phrase; it was,

however, understood that the thrust of the sentence was thereby not intended to

be changed.

 

Language of proceedings (item 2, paras. 18-21)

 

23. It was agreed to delete, in paragraph 19, the examples of documents that

might not need to be translated so as not to appear to be discouraging the

arbitral tribunal from requiring translations of those documents. The Commission

approved the substance of the paragraph along the following lines:

 

"Some documents annexed to the statements of claim and defence or submitted

later may not be in the language of the proceedings. Bearing in mind the needs

of the proceedings and economy, it may be considered whether the arbitral

tribunal should order that any of those documents or parts thereof should be

accompanied by a translation into the language of the proceedings."

 

24. The Commission did not adopt the suggestion to address cases where the

parties disagreed over the accuracy of a translation or where there was no

agreement as to the appointment of a translator.

 

25. The Commission decided to expand the first sentence of paragraph 20 along

the following lines (the addition is underlined): "If interpretation will be

necessary during oral hearings, it is advisable to consider whether the

interpretation will be simultaneous or consecutive and whether the arrangements

should be the responsibility of a party or the arbitral tribunal."

 

Place of arbitration (item 3, paras. 22-24)

 

26. The substance of paragraphs 22 to 24 was approved.

 

Administrative services that may be needed for the arbitral tribunal to carry

out its functions (item 4, paras. 25-28)

 

27. It was decided that the words "when the parties have submitted the case to

an arbitral institution" were to be replaced by "when the arbitration is

administered by an arbitral institution".

 

28. The following text was added at the end of paragraph 28: "However, it is

typically recognized that it is important to ensure that the secretary does not

perform any decision-making function of the arbitral tribunal." The addition was

considered necessary to clarify that the differing views referred to in

paragraph 28 did not mean that a decision-making function might be delegated to

the secretary of the arbitral tribunal.

 

Deposits in respect of costs (item 5, paras. 29-31)

 

29. A suggestion was made to indicate, at the end of paragraph 30, that, in

deciding how the deposits would be managed, the arbitral tribunal should take

into account the nature of the deposits, including any privileged status of the

deposited money (e.g., as regards taxation or attachment). However, such an

indication was considered to be too detailed and only one of several questions

to be borne in mind in managing the deposits.

 

 

 

Confidentiality of information relating to the arbitration; possible agreement

thereon (item 6, paras. 32 and 33)

 

30. It was observed that, while confidentiality was a feature of arbitration on

which parties typically placed great value, it was not essential for an

arbitration to be confidential. Furthermore, it was pointed out that recent

court decisions had shown that the positions differed in national laws as to the

extent of confidentiality of information relating to arbitration. It was thus

desirable to remind the parties of a possible need to address that question

expressly.


 

31. As a result, the Commission decided to reformulate paragraph 32 along the

following lines:

 

"It is widely viewed that confidentiality is one of the advantageous and helpful

features of arbitration. Nevertheless, there is no uniform answer in national

laws as to the extent to which the participants in an arbitration are under the

duty to observe the confidentiality of information relating to the case.

Moreover, parties that have agreed on arbitration rules or other provisions that

do not expressly address the issue of confidentiality cannot assume that all

jurisdictions would recognize an implied commitment to confidentiality.

Furthermore, the participants in an arbitration might not have the same

understanding as regards the extent of confidentiality that is expected.

Therefore, the arbitral tribunal might wish to discuss that with the parties

and, if considered appropriate, record any agreed principles on the duty of

confidentiality."

 

32. As to paragraph 33, it was suggested to delete from the examples of

information to be kept confidential the identity of the arbitrators (since in

practice that was not confidential) and the content of the award (since an award

became public when it was contested before a court). The suggestion was not

adopted because the information referred to could be covered by a commitment to

keep it confidential, at least in certain respects.

 

Routeing of written communications among the parties and the arbitrators (item

7, paras. 34 and 35)

 

33. The substance of paragraphs 34 and 35 was approved.

 

Telefax and other electronic means of sending information (item 8, paras. 36-38)

 

 

34. It was suggested that the issues in the use of telefax were essentially the

same as the issues relating to other electronic means and that, therefore, all

those means should be discussed together. However, the Commission thought that

the issues relating to the security of telefax were sufficiently specific to

justify a separate treatment.

 

35. Paragraph 36 was criticized as appearing to discourage unjustifiedly the use

of telefax. The Commission agreed and approved the wording of paragraph 36 along

the following lines:

 

"Telefax, which offers many advantages over traditional means of communication,

is widely used in arbitral proceedings. Nevertheless, should it be thought that,

because of the characteristics of the equipment used, it would be preferable not

to rely only on a telefacsimile of a document, special arrangements may be

considered, such as that a particular piece of written evidence should be mailed

or otherwise physically delivered, or that certain telefax messages should be

confirmed by mailing or otherwise delivering documents whose facsimile were

transmitted by electronic means. When a document should not be sent by telefax,

it may, however, be appropriate, in order to avoid an unnecessarily rigid

procedure, for the arbitral tribunal to retain discretion to accept an advance

copy of a document by telefax for the purposes of meeting a deadline, provided

that the document itself is received within a reasonable time thereafter."

 

Arrangements for the exchange of written submissions (item 9, paras. 39-42)

 

36. The substance of paragraphs 39 to 42 was approved.

 

Practical details concerning written submissions and evidence (e.g., copies,

numbering of items of evidence, references to documents, numbering ofparagraphs)

(item 10, para. 43)

 

37. The Commission adopted the following decisions: (a) to shorten the title to

read "Practical details concerning written submissions and evidence (e.g.,

method of submission, copies, numbering, references)"; (b) to include among the

matters covered in paragraph 43 also the question "whether the submissions will

be made as paper documents or by electronic means, or both (see above, paras.

36-38)"; (c) to expand the phrase "a system for numbering items of evidence" to

read "a system for numbering documents and items of evidence"; and (d) to reword

the last point relating to translations along the following lines: "when

translations are to be submitted as paper documents, whether the translations

are to be contained in the same volume as the original texts or included in

separate volumes".

 

Defining points at issue; order of deciding issues; defining relief or

remedysought (item 11, paras. 44-47)

 

38. The Commission accepted the suggestion to add, in the second sentence of

paragraph 44, other examples of disadvantages of preparing a list of points at

issue. As a result, the last two sentences of the paragraph were reworded along

the following lines:

 

"If the arbitral tribunal determines that the advantages of working on the basis

of such a list outweigh the disadvantages, it chooses the appropriate stage of


the proceedings for preparing a list, bearing in mind also that subsequent

developments in the proceedings may require a revision of the points at issue.

Such an identification of points at issue might help to concentrate on the

essential matters, to reduce the number of points at issue by agreement of the

parties, and to select the best and most economical process for resolving the

dispute. However, possible disadvantages of preparing such a list include delay,

adverse effect on the flexibility of the proceedings, or unnecessary

disagreements about whether the arbitral tribunal has decided all issues

submitted to it or whether the award contained decisions on matters beyond the

scope of the submission to arbitration."

 

39. It was decided to add, at the end of paragraph 44, language along the

following lines: "The terms of reference required under some arbitration rules,

or in agreements of parties, may serve the same purpose as the above-described

list of points at issue."

 

40. The expression "the defendant" in the last sentence of paragraph 46 was

replaced by "a party".

 

Possible settlement negotiations and their effect on scheduling proceedings

(item 12, para. 48)

 

41. The substance of paragraph 48 was approved.

 

Documentary evidence (item 13, paras. 49-55)

 

42. It was agreed to add, in paragraph 53, after the word "telefax" the words

"or electronic message".

 

43. It was suggested that the discussion of evidentiary matters in paragraph 53

was relevant in particular to the procedural systems based on common law, but

that in the civil law systems arrangements along the lines of those suggested in

the paragraph were either unnecessary or might even incite parties to raise

objections to the evidentiary conclusions mentioned in the paragraph. The

Commission, however, considered that, in the light of the fact that the Notes

were entirely non-binding, the paragraph would be useful.

 

44. The word "findings" in the second sentence of paragraph 55 was replaced by

the word "information".

 

Physical evidence other than documents (item 14, paras. 56-59)

 

45. The Commission decided to include in paragraph 58, after the words "consider

matters such as timing, meeting places" the words "other arrangements to provide

the opportunity for all parties to be present".

 

Witnesses (item 15, paras. 60-69)

 

46. The Commission decided to add, after the first sentence of paragraph 68, the

clarification along the following lines: "In those legal systems such contacts

are usually not permitted once the witness's oral testimony has begun."

 

Experts and expert witnesses (item 16, paras. 70-74)

 

47. It was agreed to add, after the second sentence in paragraph 72, the

following sentence: "It might also be useful to determine details about how the

expert will receive from the parties any relevant information or have access to

any relevant documents, goods or other property, so as to enable the expert to

prepare the report."

 

Hearings (item 17, paras. 75-86)

 

48. It was agreed to add, at the end of paragraph 76, the sentence: "The

arbitral tribunal may wish to consult the parties on this matter."

 

49. In the last sentence of paragraph 81, it was decided to add, after the words

"In view of such differences", the words "or when no arbitration rules apply".

It was considered that, instead of the word "defendant", used in paragraph 81,

the word "respondent", as used in the UNCITRAL Arbitration Rules, was generally

preferable.

 

Multi-party arbitration (item 18, paras. 87-89)

 

50. It was suggested that the substance of the last sentence of paragraph 89

should be moved to the end of paragraph 87.

 

Possible requirements concerning filing or delivering the award (item 19, paras.

90-91)

 


51. The substance of paragraphs 90 to 91 was approved.

 

 

 

C. Adoption of the UNCITRAL Notes on Organizing

Arbitral Proceedings

 

52. Upon concluding its deliberations on the draft Notes, the Commission:

 

(a) Approved the substance of the draft Notes as modified by the Commission at

the current session;

 

(b) Decided that the text adopted by the Commission be entitled "UNCITRAL Notes

on Organizing Arbitral Proceedings";

 

(c) Requested the Secretariat to edit the final text of the UNCITRAL Notes in

accordance with the decisions taken at the session; to revise the language

versions of the text so as to ensure concordance among them; to align the use of

technical terms with other texts of the Commission, in particular the UNCITRAL

Arbitration Rules and the UNCITRAL Model Law on International Commercial

Arbitration; to produce the UNCITRAL Notes as a separate publication; and to

disseminate the publication widely, including to arbitral institutions, chambers

of commerce and relevant national and international professional associations.

 

53. The Commission expressed its appreciation to the International Council for

Commercial Arbitration (ICCA) for its active participation in considerations of

drafts from which the UNCITRAL Notes emanated, and in particular for carrying

out an extensive discussion of the draft text at the XIIth International

Arbitration Congress, which ICCA had held at Vienna from 3 to 6 November 1994.

 

54. The Commission was also appreciative of the suggestions given to the

Secretariat during the preparatory work by numerous individual experts,

international and national associations of law practitioners, and arbitral

institutions.

 

III. DRAFT UNCITRAL MODEL LAW ON LEGAL ASPECTS OF ELECTRONIC DATA

INTERCHANGE (EDI) AND RELATED MEANS OF COMMUNICATION

 

 

 

A. Introduction

 

1. Draft Model Law

 

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

(1992), 7/ the Working Group on Electronic Data Interchange devoted its

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

statutory provisions regarding the use of electronic data interchange (EDI) and

other modern means of communication. Those draft provisions were approved by the

Working Group in the form of a draft Model Law on Legal Aspects of Electronic

Data Interchange (EDI) and Related Means of Communication (hereinafter referred

to as "the draft Model Law") at the close of its twenty-eighth session (for the

reports on those sessions, see A/CN.9/373, 387, 390 and 406). The text of the

draft articles of the Model Law as presented to the Commission by the Working

Group was contained in the annex to document A/CN.9/406.

 

56. The Working Group carried out its task on the basis of background working

papers prepared by the Secretariat on possible issues to be included in the

Model Law. Those background papers included A/CN.9/WG.IV/WP.53 (Possible issues

to be included in the programme of future work on the legal aspects of EDI) and

A/CN.9/WG.IV/WP.55 (Outline of possible uniform rules on the legal aspects of

electronic data interchange). The draft articles of the Model Law were submitted

by the Secretariat in documents A/CN.9/WG.IV/WP.57, 60 and 62. The Working Group

also had before it a proposal by the United Kingdom of Great Britain and

Northern Ireland relating to the possible contents of the draft Model Law

(A/CN.9/WG.IV/WP.58). The text of the draft Model Law as approved by the Working

Group at its twenty-eighth session was sent to all Governments and to interested

international organizations for comment. The comments received were reproduced

in document A/CN.9/409 and Add.1-4.

 

57. At its twenty-eighth session (1995), the Commission adopted the text of

articles 1 and 3 to 11 of the draft Model Law. At the current session, the

Commission resumed its consideration of the draft Model Law.

 

 

 

2. Additional provisions concerning transport documents

 

58. The Commission, at its twenty-eighth session, 8/ recalled that, at its

twenty-seventh session (1994), general support had been expressed in favour of a

recommendation made by the Working Group that preliminary work should be

undertaken on the issue of negotiability and transferability of rights in goods

in a computer-based environment as soon as the preparation of the Model Law had

been completed. 9/ It was noted that, on that basis, a preliminary debate with

respect to future work to be undertaken in the field of electronic data


interchange had been held in the context of the twenty-ninth session of the

Working Group (for the report on that debate, see A/CN.9/407, paras. 106-118).

At that session, the Working Group also considered proposals by the

International Chamber of Commerce (A/CN.9/WG.IV/WP.65) and the United Kingdom of

Great Britain and Northern Ireland (A/CN.9/WG.IV/WP.66) relating to the possible

inclusion in the draft Model Law of additional provisions 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 (for the report on the discussion, see A/CN.9/407, paras.

100-105). It was agreed that the issue of incorporation by reference might need

to be considered in the context of future work on negotiability and

transferability of rights in goods (A/CN.9/407, para. 103). The Commission

endorsed the recommendation made by the Working Group that the Secretariat

should be entrusted with the preparation of 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 at the twenty-ninth session of the Working Group. 10/

 

59. On the basis of the study prepared by the Secretariat (A/CN.9/WG.IV/WP.69),

the Working Group, at its thirtieth session, discussed the issues of

transferability of rights in the context of transport documents and approved the

text of draft statutory provisions dealing with the specific issues of contracts

of carriage of goods involving the use of data messages (for the report on that

session, see A/CN.9/421). The text of those draft provisions as presented to the

Commission by the Working Group for final review and possible addition as part

II of the Model Law was contained in the annex to document A/CN.9/421.

 

 

 

3. Draft Guide to Enactment of the Model Law

 

60. In preparing the Model Law, the Working Group noted that it would be useful

to provide in a commentary additional information concerning the Model Law. In

particular, at the twenty-eighth session of the Working Group, during which the

text of the draft Model Law was finalized for submission to the Commission,

there was general support for a suggestion that the draft Model Law should be

accompanied by a guide to assist States in enacting and applying the draft Model

Law. The guide, much of which could be drawn from the travaux prйparatoires of

the draft Model Law, would also be helpful to users of electronic means of

communication as well as to scholars in that area. The Working Group noted that,

during its deliberations at that session, it had proceeded on the assumption

that the draft Model Law would be accompanied by a guide. For example, the

Working Group had decided in respect of a number of issues not to settle them in

the draft Model Law but to address them in the guide so as to provide guidance

to States enacting the draft Model Law. The Secretariat was requested to prepare

a draft and submit it to the Working Group for consideration at its twenty-ninth

session (A/CN.9/406, para. 177).

 

61. At its twenty-ninth session, the Working Group discussed the draft Guide to

Enactment of the Model Law (hereinafter referred to as "the draft Guide") as set

forth in a note prepared by the Secretariat (A/CN.9/WG.IV/WP.64). The

Secretariat was requested to prepare a revised version of the draft Guide

reflecting the decisions made by the Working Group and taking into account the

various views, suggestions and concerns that had been expressed at that session.

 

 

62. At the current session, the Commission had before it the revised text of the

draft Guide prepared by the Secretariat (A/CN.9/426).

 

 

 

B. Consideration of draft articles

 

Article 12. Acknowledgement of receipt

 

63. The Commission had before it the text of draft article 12 as approved by the

Working Group at its twenty-eighth session, which read as follows:

 

"(1) This article applies where, on or before sending a data message, or by

means of that data message, the originator has requested an acknowledgement of

receipt.

 

"(2) Where the originator has not requested that the acknowledgement be in a

particular form, the request for an acknowledgement may be satisfied by any

communication or conduct of the addressee sufficient to indicate to the

originator that the data message has been received.

 

"(3) Where the originator has stated that the data message is conditional on

receipt of that acknowledgement, the data message has no legal effect until the

acknowledgement is received.

 

"(4) Where the originator has not stated that the data message is conditional on

receipt of the acknowledgement and the acknowledgement has not been received by

the originator within the time specified or agreed or, if no time has been

specified or agreed, within a reasonable time:

 


"(a) the originator may give notice to the addressee stating that no

acknowledgement has been received and specifying a time, which must be

reasonable, by which the acknowledgement must be received; and

 

"(b) if the acknowledgement is not received within the time specified in

subparagraph (a), the originator may, upon notice to the addressee, treat the

data message as though it had never been transmitted, or exercise any other

rights it may have.

 

"(5) Where the originator receives an acknowledgement of receipt, it is presumed

that the related data message was received by the addressee. Where the received

acknowledgement states that the related data message met technical requirements,

either agreed upon or set forth in applicable standards, it is presumed that

those requirements have been met."

 

General remarks

 

64. A concern was expressed that the notion of "acknowledgement of receipt" on

which the draft article was based was insufficiently clear, possibly too broad,

and that it did not adequately reflect the variety among the procedures used by

the parties to acknowledge receipt of data messages. In particular, it was

pointed out that the text of draft article 12 did not specifically address the

situation where an acknowledgement of receipt of a message was automatically

generated by the computer system of the addressee (a type of acknowledgement

sometimes referred to as "system acknowledgement"), as distinct from situations

where the issuance of an acknowledgement resulted from specific action by the

addressee. It was suggested that situations where an acknowledgement of receipt

was generated automatically without direct intervention of the addressee should

be treated as exceptions to the general rules established by draft article 12.

 

65. In response, it was stated that the draft article had been drafted in broad

terms precisely taking into account the fact that the functions of an

acknowledgement of receipt might be performed through a variety of procedures,

whether automated or otherwise. In that connection, it was pointed out that

draft article 12, as the other provisions contained in chapter III, was to be

regarded as a default provision, from which the parties were free to derogate.

The automatic acknowledgement of receipt was but one of the forms in which an

acknowledgement of receipt could be given under draft article 12, subject to any

agreement by the parties who could, for example, agree to exclude the use of

automatic acknowledgement or, on the contrary, establish more detailed

provisions dealing with the consequences of operating automated systems. With a

view to clarifying further that the functions assigned to an acknowledgement of

receipt under draft article 12 could be performed by various kinds of

procedures, a number of proposals were made to amend the reference to the "form"

of an acknowledgement under paragraph (2). It was suggested that the words "be

in a particular form" should be replaced by the words: "be in a particular form

or contain specific information"; "be of a particular kind or in a particular

form"; or "be in a particular form or use a specific method or procedure".

 

66. However, a widely shared view was that the issue of the form of

acknowledgements of receipt could not satisfactorily be dealt with through minor

redrafting of paragraph (2). Rather, the issue should be discussed in the

context of its possible implications with respect to such fundamental policy

issues as: whether the form of the acknowledgement could be decided upon

unilaterally by the originator or by the addressee; and the extent to which the

sending of a particular kind of acknowledgement should create a presumption that

the related message had been received by the addressee. As a matter of drafting,

it was generally agreed that a reference to the "method" by which the

acknowledgement might be given should be inserted in the provision, alongside

the reference to the "form" of the acknowledgement.

 

67. In view of the concerns raised with respect to draft article 12, a number of

delegations submitted a joint proposal for a revised draft article 12. The

revised text, which the Commission decided to consider as a basis for

discussion, was as follows:

 

"(1) Paragraphs (2) to (4) of this article apply where, on or before sending a

data message, or by means of that data message, the originator has requested or

has agreed with the addressee that receipt of the data message be acknowledged.

 

"(2) Where the originator has not requested or agreed with the addressee that

the acknowledgement be given in a particular form or by a particular method, the

request for an acknowledgement may be satisfied by:

 

"(a) any communication by the addressee, automated or otherwise, or

 

"(b) any conduct of the addressee

 

sufficient to indicate to the originator that the data message has been

received.

 

"(3) Where the originator has stated that the data message is conditional on

receipt of that acknowledgement, the data message has no legal effect until the

acknowledgement is received.

 

"(4) Where the originator has not stated that the data message is conditional on


receipt of the acknowledgement and the acknowledgement has not been received by

the originator within the time specified or agreed or, if no time has been

specified or agreed, within a reasonable time:

 

"(a) the originator may give notice to the addressee stating that no

acknowledgement has been received and specifying a time, which must be

reasonable, by which the acknowledgement must be received; and

 

"(b) if the acknowledgement is not received within the time specified in

subparagraph (a), the originator may, upon notice to the addressee, treat the

data message as though it had never been transmitted, or exercise any other

rights it may have.

 

"(5) Where the originator receives an acknowledgement of receipt, it is presumed

that the related data message was received by the addressee. This presumption

does not imply that the data message corresponds to the message received.

 

"(6) Where the received acknowledgement states that the related data message met

technical requirements, either agreed upon or set forth in applicable standards

[such as those verifying the integrity of its contents], it is presumed that

those requirements have been met.

 

"(7) Apart from establishing receipt of the data message, this article is not

intended to deal with the legal consequences that may flow from either that data

message or the acknowledgement of its receipt."

 

New paragraph (1)

 

68. It was noted that new paragraph (1) was closely modelled on the text of

paragraph (1) as approved by the Working Group at the twenty-eighth session of

the Commission, with the only addition of a reference to the situation where the

originator and the addressee had agreed that receipt of a data message had to be

acknowledged. It was stated that such a reference was superfluous in view of the

general recognition of party autonomy under article 10. The prevailing view,

however, was that the additional reference served a useful purpose by

emphasizing that draft article 12 should be regarded as a default rule. After

discussion, the Commission found the substance of new paragraph (1) to be

generally acceptable and referred it to the drafting group.

 

New paragraph (2)

 

69. The view was expressed that new paragraph (2) was better than the text of

paragraph (2) as approved by the Working Group at the twenty-eighth session in

that it expressly provided that, in the absence of any specific form

requirement, an acknowledgement could be given validly by automatic means, a

provision that was only implicit in the previous version of that paragraph.

 

70. It was noted that the text of new paragraph (2), as a default rule, dealt

only with the situation where the originator had not requested or agreed with

the addressee that the acknowledgement should be given in a particular form or

by a particular method. Divergent views were expressed as to how the Model Law

should deal with the reverse situation, i.e., where such a request or agreement

had been made as to the form of the acknowledgement. One view was that new

paragraph (2), following the previous version of that paragraph, had been

appropriately drafted to allow an a contrario interpretation. The effect of such

interpretation would be that, where the originator had unilaterally requested

that the acknowledgement should be given in a particular form and the form

requirement had not been met, then it should be considered that no

acknowledgement had been received for the purposes of paragraphs (3) and (4) of

draft article 12. In support of that view, it was recalled that draft article 12

was based on the policy decision that acknowledgement procedures should be used

at the discretion of the originator. As a reason for reaffirming that policy

decision, it was stated that a purpose of draft article 12 was to avoid

situations where the originator might operate in a legal vacuum. Such situations

might arise, in particular, in the context of communication techniques such as

Open-edi, where the originator and the addressee were not linked by any

pre-existing legal or commercial framework. For example, where the originator

took the initiative of sending messages to circulate an offer to contract, it

should be allowed to determine, in the absence of any prior agreement, how the

corresponding messages should be acknowledged. In response, it was stated that,

in such a case, the rights of the originator would typically be guaranteed by

law applicable outside the Model Law, for example, the law applicable to the

formation of contracts. In that connection, it was recalled that acknowledgement

of receipt of an offer should be clearly distinguished from any communication

related to the possible acceptance of the offer.

 

71. Another view was that, at least with respect to addressees whose computer

systems automatically acknowledged receipt of messages by way of "system

acknowledgements", the Model Law should not allow the originator to impose

unilateral form requirements, since such requirements might be incompatible with

the normal operation of such automatic systems. It was stated that the

development of the use of automated communication systems might be adversely

affected if the originator of a message was allowed to interfere with the

automatic operation of communication systems by establishing abusive form

requirements. In response, it was stated that, should an exception to the policy

underlying draft article 12 be made to cover the use of automatic

acknowledgements, the power to establish the standards applicable to

acknowledgements would be shifted from the originator to the addressee. The

operation of automatic systems, which was said to be hardly conceivable in the


absence of an agreement among their users, could be affected equally if the

addressee, through the automatic generation of acknowledgements, was allowed to

establish procedures that might not be compatible with the normal operation of

the communication system of the originator.

 

72. Various proposals were made as to how the Model Law should deal with the

allocation of the power to establish unilateral requirements as to the form of

acknowledgements of receipt. One proposal was to redraft paragraph (2) along the

following lines:

 

"(2) Where the originator has requested that an acknowledgement be given in a

particular form or by a particular method, an acknowledgement is only sufficient

for the purposes of paragraphs (3) and (4) if given in that form or by that

method, provided that the form or method requested is not unreasonable in the

circumstances. Where the originator has not requested that the acknowledgement

be in a particular form, the request for an acknowledgement may be satisfied by

any communication or conduct of the addressee sufficient to indicate to the

originator that the data message has been received."

 

That proposal was objected to on the grounds that the reference to the

reasonable character of the requested procedure might introduce a factor of

uncertainty in the operation of the Model Law. It was pointed out that the

addressee of the data message who had issued an acknowledgement, although not in

the requested form (for example where the addressee was unable to meet the form

requirement), should not be burdened with the obligation to make an assessment

as to the reasonableness of the form requirement.

 

73. Another proposal was to rephrase paragraph (2) in positive terms to deal

primarily with the situation where the originator had requested that the

acknowledgement should be given in a specific form. In such a case, paragraph

(2) should provide that an acknowledgement could only be valid under draft

article 12 if it was given in the requested form. As an exception to that rule,

if an acknowledgement was issued automatically by the communication system of

the addressee, in a form that might not be the form requested by the originator,

such an acknowledgement would none the less constitute a valid acknowledgement

under draft article 12, provided that it reached the originator.

 

74. Support was expressed in favour of the above-mentioned proposal. Support was

also expressed in favour of maintaining the text of paragraph (2) as approved by

the Working Group at its twenty-eighth session. The prevailing view, however,

was that the text of new paragraph (2) should focus on situations where the

originator and the addressee had agreed on acknowledgement procedures and that

situations where an acknowledgement had been requested to be given in a specific

form should not be expressly dealt with under that article. It was decided that

the words "requested or" should be deleted from the text of new paragraph (2),

which was adopted by the Commission. It was noted that a possible consequence of

that decision was that a unilateral requirement by the originator as to the form

of acknowledgements would not affect the right of the addressee to acknowledge

receipt by any communication or conduct sufficient to indicate to the originator

that the message had been received. It was generally agreed that such a decision

made it particularly necessary to emphasize in the Model Law the distinction to

be drawn between the effects of an acknowledgement of receipt of a data message

and any communication in response to the content of that data message, a reason

why paragraph (7) was needed.

 

75. After deliberation, the Commission adopted the substance of new paragraph

(2) as amended and referred it to the drafting group.

 

New paragraph (3)

 

76. It was noted that the text of new paragraph (3) reproduced the text of

paragraph (3) as approved by the Working Group at the twenty-eighth session. The

Commission found the substance of new paragraph (3) to be generally acceptable.

A proposal was made to add the following sentence at the end of the paragraph:

"Where the originator has stated that the data message is conditional on receipt

of an acknowledgement given in a particular form or by a particular method, the

data message has no legal effect until an acknowledgement given in that form or

by that method is received." No support was expressed in favour of that

proposal.

 

77. As a matter of drafting, the view was expressed that the words "the data

message has no legal effect" might be inconsistent with the text of new

paragraph (7), which indicated that draft article 12 was not intended to deal

with the legal consequences that might flow from the data message. Furthermore,

questions might be raised as to whether the reference to a data message having

"no legal effect" in paragraph (3) should be interpreted differently from the

reference to the data message being treated "as though it had never been

transmitted" in paragraph (4) (b).

 

78. After deliberation, the Commission decided that the words "the data message

has no legal effect" should be replaced by wording parallel to that of paragraph

(4) (b). The matter was referred to the drafting group. It was agreed that the

possible inconsistency between new paragraphs (3) and (7) would need to be

considered further in the context of the discussion of new paragraph (7) (see

paras. 84-86 below).

 

New paragraph (4)

 


79. It was noted that the text of new paragraph (4) reproduced the text of

paragraph (4) as approved by the Working Group at its twenty-eighth session. The

view was expressed that the reference to a "reasonable time" in new paragraph

(4) was unclear and should be replaced by a reference to a specified period of

time. No support was expressed in favour of that proposal. After deliberation,

the Commission found the substance of new paragraph (4) to be generally

acceptable and referred it to the drafting group.

 

New paragraph (5)

 

80. It was noted that the first sentence of new paragraph (5) reproduced the

first sentence of paragraph (5) as approved by the Working Group at the

twenty-eighth session. The view was expressed that the text should indicate more

clearly that the presumption created with respect to receipt of the data message

should not be misinterpreted as involving approval of the contents of the

message by the addressee. It was generally agreed that both the draft Guide

(A/CN.9/426, para. 98) and new paragraph (7) were sufficient to avoid such

misinterpretation.

 

81. As to the second sentence of new paragraph (5), doubts were expressed as to

whether that provision was consistent with the provision of article 11 (5),

which established the conditions under which, in case of an inconsistency

between the text of the data message as sent and the text as received, the text

as received would prevail. The prevailing view was that the two provisions were

not incompatible.

 

82. After discussion, the Commission adopted the substance of new paragraph (5)

and referred it to the drafting group.

 

New paragraph (6)

 

83. The Commission found the substance of new paragraph (6) to be generally

acceptable and referred it to the drafting group. As to the words between square

brackets ("such as those verifying the integrity of its contents"), it was

pointed out that they were only intended to provide examples of the "applicable

standards" referred to in the paragraph. It was generally agreed that such

examples would better be dealt with in the Guide to Enactment than in the text

of the Model Law.

 

New paragraph (7)

 

84. The view was expressed that new paragraph (7) was superfluous since the

effect of draft article 12 was limited to setting forth conditions under which

an acknowledgement of receipt and the corresponding data message would be deemed

to be received. It was thus sufficiently clear that draft article 12 was not

intended to deal with the legal consequences that might flow from receipt of the

data message. It was stated that the inclusion of such a provision in draft

article 12 might raise questions as to the need to include a similar provision

in draft articles 11 and 14. In favour of deletion of new paragraph (7), it was

also stated that, should the legal effect of an acknowledgement of receipt be

dealt with in the Guide to Enactment, more detailed explanations could be given

than in the Model Law.

 

85. Another view was that new paragraph (7) might serve a useful educational

purpose by dispelling uncertainties that might exist as to the legal effect of

an acknowledgement of receipt. For example, new paragraph (7) was useful in that

it indicated clearly that an acknowledgement of receipt should not be confused

with any communication related to the contents of the acknowledged message. The

prevailing view was that, since no strong objection was made to the retention of

new paragraph (7) in the text of draft article 12, and since such a provision

might be regarded as useful in a number of countries, a provision along the

lines of new paragraph (7) should be adopted.

 

86. As indicated in the context of the discussion of new paragraph (3) (see

paras. 76-78 above), the Commission generally felt that there might be an

inconsistency between the text of new paragraph (3) and new paragraph (7). In

particular, it was pointed out that, by establishing rules under which a data

message "would have no legal effect" or would be treated "as though it had never

been transmitted", new paragraphs (3) and (4) did deal with certain legal

consequences that might result from the transmission of a data message.

 

87. Various proposals were made as to how that inconsistency might be dealt

with. One suggestion was that the opening words of new paragraph (7) should read

as follows: "Apart from establishing receipt of the data message, and unless

otherwise provided for in this Law ..." It was generally felt that adopting such

a wording would empty the provision of meaning. Another suggestion was that the

opening words of new paragraph (7) should read as follows: "Apart from

establishing receipt of the data message, and subject to paragraphs (3) and (4)

..." The reference to new paragraph (7) being subject to new paragraph (4) was

said to be superfluous since new paragraph (4) dealt with the time and place of

receipt of the data message and was thus sufficiently covered in the opening

words of new paragraph (7). Yet another suggestion was that new paragraph (7)

should read as follows: "Except in so far as it relates to the transmission or

receipt of a data message, this article is not intended to deal with the legal

consequences that may flow from either that data message or the acknowledgement

of its receipt."

 

88. After discussion, the Commission adopted the last suggestion and referred


the text of new paragraph (7) to the drafting group.

 

 

 

Article 13. Formation and validity of contracts

 

89. The Commission had before it the text of draft article 13 as approved by the

Working Group at its twenty-eighth session, which read as follows:

 

"(1) In the context of contract formation, unless otherwise agreed by the

parties, an offer and the acceptance of an offer may be expressed by means of

data messages. Where a data message is used in the formation of a contract, that

contract shall not be denied validity or enforceability on the sole ground that

a data message was used for that purpose.

 

"(2) The provisions of this article do not apply to the following: [...]"

 

Paragraph (1)

 

90. Various views were expressed with respect to the words "unless otherwise

agreed by the parties" in the first sentence of the paragraph. One view was that

those words should be deleted, since they merely restated the principle already

embodied in article 10. It was stated that such a restatement in the context of

draft article 13 was confusing and might lead to the unduly narrow

interpretation that article 10 did not cover the situation addressed in draft

article 13.

 

91. The opposing view was that the words should be retained, since they served a

useful purpose in recalling and clarifying that the use of data messages in

contract formation was subject to party autonomy. A concern was expressed about

the risk that article 10 might be interpreted a contrario. Since article 10

conferred upon parties "involved" in electronic communication the right to

deviate by agreement from the provisions of chapter III, it might be misread as

refusing such a right to parties that were not involved in electronic

communication. According to that interpretation, for example in the context of

contract formation, parties who normally dealt with each other by way of

paper-based communication and might even be linked by a master agreement

providing that subsequent contracts would have to be formed by paper-based

means, would not necessarily be regarded under article 10 as free to derogate

from the provisions of draft article 13. Unless it expressly provided for party

autonomy, draft article 13 would thus lead to the unacceptable result that it

could be relied upon to override such a master agreement.

 

92. In response to the above-mentioned concern, it was recalled that the purpose

of draft article 13 was not to impose the use of electronic means of

communication on parties who relied on the use of paper-based communication to

form contracts. Rather, draft article 13 was intended to implement, in the

context of contract formation, the general principle embodied in article 4 that

the use of electronic means of communication should not be discriminated

against. The question whether to maintain a reference to party autonomy in the

text of draft article 13 was merely one of whether it was useful to restate and

clarify the general rule laid down in article 10.

 

93. After discussion, the Commission decided to adopt the text of paragraph (1)

unchanged, so as to accommodate the concern that the deletion of the words

"unless otherwise agreed by the parties" might have unintended consequences. It

was also decided that the draft Guide should make it clear that the purpose of

article 13 was merely to clarify and restate the principle of party autonomy

expressed in article 10. As to the scope of article 10, the draft Guide should

make it clear that it should not be interpreted as restricting in any way party

autonomy with respect to parties not involved in the use of electronic

communication.

 

Paragraph (2)

 

94. The Commission found the substance of paragraph (2) to be generally

acceptable and referred it to the drafting group.

 

Proposal for new article 13 bis

 

95. It was observed that article 13 was limited to dealing with data messages

that were geared to the conclusion of a contract, but that the draft Model Law

did not contain specific provisions on data messages that related not to the

conclusion of contracts but to the performance of contractual obligations (e.g.,

notice of defective goods, an offer to pay, notice of place where a contract

would be performed, recognition of debt). It was proposed that a provision

covering expressions of will other than an offer or an acceptance of an offer

should be included in the Model Law.

 

96. The proposal was objected to on the grounds that the addressee of a data

message might not have expected to receive a message in electronic form. Thus,

it was stated, it might be unfair to impose on the addressee the legal

consequences of a message, if the use of a non-paper-based method for its

transmission came as a surprise to the addressee.

 


97. In response, it was recalled that, as indicated with respect to draft

article 13 (see para. 92 above), the purpose of the Model Law was not to impose

the use of electronic means of communication but to validate its use, subject to

contrary agreement by the parties. Since modern means of communication were used

in a context of legal uncertainty, in the absence of specific legislation in

most countries, it was appropriate for the Model Law not only to establish the

general principle that the use of electronic communication should not be

discriminated against, as expressed in article 4, but also to include specific

illustrations of that principle. Contract formation was but one of the areas

where such an illustration was useful and the legal validity of unilateral

expressions of will, as well as other notices or statements that might be issued

in the form of data messages, also needed to be mentioned.

 

98. Several suggestions were made as to how the proposed provision might be

worded. One suggestion was that an additional paragraph should be included in

draft article 13 along the following lines: "Where a data message is used in a

transaction, that transaction shall not be denied legal validity or

enforceability on the sole ground that a data message was used." Other

suggestions were made for inclusion, either in a new paragraph of draft article

13 or as a separate article that would mirror the structure of draft article 13,

of a reference to such notions as "any communication" or "any transaction or

other communication". The use of such notions was objected to on the grounds

that they might be insufficiently precise to convey any significant legal

meaning. Further suggestions referred to legal categories such as "declaration

of intent", "manifestation of will or knowledge", "legal act" and "notice or

statement".

 

99. After discussion, the Commission decided that, for reasons of legal

certainty and facilitation of the use of electronic means of communication, a

new article should be included in the text of the draft Model Law and requested

the drafting group to prepare a provision taking into account the above

suggestions.

 

 

 

Article 14. Time and place of dispatch and

receipt of data messages

 

100. The text of draft article 14 as considered by the Commission read as

follows:

 

"(1) Unless otherwise agreed between the originator and the addressee of a data

message, the dispatch of a data message occurs when it enters an information

system outside the control of the originator.

 

"(2) Unless otherwise agreed between the originator and the addressee of a data

message, the time of receipt of a data message is determined as follows:

 

"(a) if the addressee has designated an information system for the purpose of

receiving such data messages, receipt occurs at the time when the data message

enters the designated information system, but if the data message is sent to an

information system of the addressee that is not the designated information

system, receipt occurs when the data message is retrieved by the addressee;

 

"(b) if the addressee has not designated an information system, receipt occurs

when the data message enters an information system of the addressee.

 

"(3) Paragraph (2) applies notwithstanding that the place where the information

system is located may be different from the place where the data message is

received under paragraph (4).

 

"(4) Unless otherwise agreed between the originator and the addressee of a

computerized transmission of a data message, a data message is deemed to be

received at the place where the addressee has its place of business, and is

deemed to be dispatched at the place where the originator has its place of

business. For the purposes of this paragraph:

 

"(a) if the addressee or the originator has more than one place of business, the

place of business is that which has the closest relationship to the underlying

transaction or, where there is no underlying transaction, the principal place of

business;

 

"(b) if the addressee or the originator does not have a place of business,

reference is to be made to its habitual residence.

 

"(5) Paragraph (4) shall not apply to the determination of place of receipt or

dispatch for the purpose of any administrative, criminal or data-protection

law."

 

Paragraph (1)

 

101. A concern was expressed that it might be inappropriate to define the

"dispatch" of a data message in paragraph (1) by reference to an event that

occurred in fact after the dispatch, namely the moment when the message entered

an information system outside the control of the originator. In response, it was


pointed out that, in an electronic environment, no strict equivalent could be

given to a "mailbox rule" of the kind that existed in many national laws with

respect to paper-based communications. However, the rule contained in paragraph

(1) was intended to fulfil, in an electronic environment, the function of a

"mailbox rule", i.e., to provide certainty as to the time of dispatch of a data

message. To alleviate the above-mentioned concern, it was stated that, when the

parties corresponded directly in an electronic environment, the dispatch and

receipt of a message might occur almost simultaneously. It was recalled that the

Working Group had extensively considered this matter, including the consequences

of the addressee's intentional failure to retrieve the message. The Working

Group had felt that the only objective way for determining when a message had

been dispatched was the one embodied in paragraph (1), i.e., when the message

entered an information system outside the originator's control. Such information

system might be the addressee's own, or an information system maintained by a

third-party service provider.

 

102. After discussion, the Commission found the substance of paragraph (1) to be

generally acceptable and referred it to the drafting group. It was agreed that

the reference to "an information system outside the control of the originator"

at the end of paragraph (1) might need to be reworded to make it clear that it

was intended as a reference to the control of the originator itself or the

control of the person who sent the data message on behalf of the originator, as

the case might be.

 

Paragraph (2)

 

103. A view was expressed that the Commission should also consider addressing in

paragraph (2) situations where the actual knowledge of the content of a message

by its addressee was a requirement for the formation of an agreement between the

originator and the addressee. Thus, it was proposed to add the words "except

when actual knowledge by the addressee is of the essence of the transaction"

immediately after the opening clause of subparagraph (a) of paragraph (2).

However, there was not sufficient support for that proposal, as it was felt that

the proposed addition amounted in fact to introducing a new substantive rule in

the Model Law with respect to the legal effectiveness of data messages, i.e., a

rule based on information of the addressee as to the contents of the data

message. It was recalled that the general policy underlying the Model Law was

that data messages were effective from the time they had been received by the

addressee.

 

104. After discussion, the Commission found the substance of paragraph (2) to be

generally acceptable and referred it to the drafting group.

 

Paragraph (3)

 

105. The Commission found the substance of paragraph (3) to be generally

acceptable and referred it to the drafting group. It was decided that the words

"deemed to be" should be added before the word "received", so as to make

paragraph (3) entirely consistent with the text of paragraph (4).

 

Paragraph (4)

 

106. It was questioned why paragraph (4) referred to a "computerized

transmission of a data message" and paragraph (3) referred to a "data message".

In response, it was stated that the words "of a computerized transmission" had

been added to qualify the words "data message" in the first sentence of

paragraph (4) because that paragraph was meant to solve difficulties which would

only arise in the context of a computerized message interchange. There was

general agreement, however, that it was preferable to delete the words "of a

computerized transmission" from paragraph (4), as those words might generate

undesirable doubts as to the scope of paragraph (4) and, in general, to the

meaning of the words "data message", as used elsewhere in the Model Law, since

not all transmissions to which the Model Law applied were "computerized".

 

107. The view was expressed that the current wording of subparagraph (b) was not

entirely clear and that it would be preferable to delete the phrase "reference

is to be made to its habitual residence" and replace it by the phrase "the place

of its habitual residence is to be regarded as its place of business". However,

it was pointed out that the current wording of subparagraph (b) derived from

article 10 of the United Nations Convention on Contracts for the International

Sale of Goods and it was generally agreed that, for the sake of uniformity, the

same wording should be used in the Model Law.

 

108. After discussion, the Commission found the substance of paragraph (4) to be

generally acceptable and referred it to the drafting group. As a matter of

drafting, the view was expressed that, since the dispatch of a message

necessarily preceded its receipt, the various elements of paragraph (4) should

be rearranged so as to deal first with the question where a message was deemed

to have been dispatched, before establishing where a message was deemed to have

been received.

 

Paragraph (5)

 

109. The view was expressed that, in addition to the determination of the place

of receipt or dispatch for the purpose of any administrative, criminal or

data-protection laws, paragraph (5) should also exclude the application of

paragraph (4) to the determination of the place of receipt or dispatch for the

purpose of determining the jurisdiction of national courts or other organs. It


was felt that paragraphs (4) and (5), in their current form, made it possible

for the parties to avoid the application of jurisdictional or procedural rules

by agreeing on where the messages should be deemed to have been dispatched or

received. In order to avoid giving the parties such an unfettered freedom to

evade the jurisdiction of national courts or other organs, it was proposed to

delete the words "unless otherwise agreed between the originator and the

addressee" in paragraph (4) and to add the word "procedural" after the word

"administrative" in paragraph (5).

 

110. Some support was expressed for the proposed deletion in paragraph (4), as

the words "unless otherwise agreed between the originator and the addressee" in

paragraph (4) were regarded as an unnecessary repetition of the rule contained

in paragraph (1) of article 10, according to which the provisions of chapter III

of the Model Law might be varied by agreement of the parties. However, it was

recalled that this matter had been discussed in the Working Group, where the

prevailing view had been in favour of maintaining those words. The Commission

thus agreed to retain the wording of paragraph (4).

 

111. There was objection to the proposed addition of the word "procedural" to

paragraph (5). It was emphasized that conflict-of-laws and jurisdictional

questions were outside the scope of the Model Law in general, and of paragraph

(5) in particular. It was questioned whether there was any need for maintaining

paragraph (5), which was felt to open more questions and create more

difficulties than it purported to solve. Furthermore, it was pointed out that it

was essential to keep paragraph (4) as a default rule and to retain the parties'

ability to determine where their actions would take place.

 

112. As to the proposed addition to paragraph (5), it was stated that it would

be not only unnecessary but undesirable, as it would broaden the scope of an

exceptional provision which already contained very broad exceptions to paragraph

(4). Besides, public policy concerns were no convincing reason for causing such

an expansion of the scope of paragraph (5), since it was unlikely that national

courts would enforce a private agreement to the detriment of mandatory laws.

 

113. The Commission engaged in a general debate as to the scope of paragraph (5)

in its current form. It was noted that in some legal systems the words

"administrative, criminal or data-protection law" were broad enough to encompass

jurisdictional or procedural laws, with no need for any further addition. It was

also noted that paragraph (5) carried with it the risk of leading to varying

results in different legal systems, as it referred to fields of legislation that

were not harmonized and were differently understood in national laws. It was

also pointed out that article 1 of the Model Law, as clarified in the last of

its footnotes, already gave States the possibility to identify the situations to

which the provisions of the Model Law did not apply.

 

114. The view was expressed, however, that article 1, which defined the general

sphere of application of the Model Law, was not the appropriate place for

inclusion of a provision specifically aimed at ruling out the possibility that

the parties evade the competence of national courts by means of agreement as to

the place where a message was deemed to be dispatched or received. It was

suggested that, if the Commission were seriously concerned about that

possibility, it could add a specific provision to article 14 that would make it

possible for States to exclude special situations from the field of application

of article 14, similarly to the provision contained in paragraph (2) of article

6.

 

115. After discussion, the Commission decided to delete paragraph (5) and

replace it with the following text:

 

"The provisions of this article do not apply to the following [...]".

 

 

 

Article 2. Definitions

 

116. The text of draft article 2 as considered by the Commission read as

follows:

 

"For the purposes of this Law:

 

"(a) 'Data message' means information generated, stored or communicated by

electronic, optical or analogous means including, but not limited to, electronic

data interchange (EDI), electronic mail, telegram, telex or telecopy;

 

"(b) 'Electronic data interchange (EDI)' means the electronic transfer from

computer to computer of information using an agreed standard to structure the

information;

 

"(c) 'Originator' of a data message means a person by whom, or on whose behalf,

the data message purports to have been generated, stored or communicated, but it

does not include a person acting as an intermediary with respect to that data

message;

 

"(d) 'Addressee' of a data message means a person who is intended by the

originator to receive the data message, but does not include a person acting as

an intermediary with respect to that data message;


 

"(e) 'Intermediary', with respect to a particular data message, means a person

who, on behalf of another person, receives, transmits or stores that data

message or provides other services with respect to that data message;

 

"(f) 'Information system' means a system for generating, transmitting, receiving

or storing information in a data message."

 

Subparagraph (a) (Definition of "Data message")

 

117. The view was expressed that the reference to "telegram, telex or telecopy"

was not appropriate in the definition of "data message", as it might imply that

the Model Law was also applicable to any kind of paper-based communication. The

Commission generally agreed that the Model Law should not be applicable to any

kind of paper-based communication. However, it was generally felt that the

reference to telegram, telex and telecopy was necessary, since the generation or

communication of messages through such means of communication was not

exclusively paper-based and included an element of de-materialization of the

support of the information.

 

118. The Commission engaged in a general discussion concerning the reference, in

subparagraph (a), to the means used for generating, storing or communicating

information (i.e., "electronic, optical or analogous means"), as well as to the

illustrative list thereof (e.g., "electronic data interchange (EDI), electronic

mail, telegram, telex or telecopy") that was to be encompassed by the definition

of "data message". The view was expressed that the reference to "electronic,

optical or analogous means" was incomplete and that it was not clear what was

meant by the expression "analogous means". The use of the words "analogous

means" might give many readers the understanding that "analogous" referred to

"analog" (as opposed to "digital"). Thereby, the definition would refer to any

set of data, including spoken words. As a way of clarifying that definition, it

was suggested to use the word "digital" instead of "analogous".

 

119. Various objections were raised to that proposal and a number of alternative

suggestions were formulated. It was pointed out that the definition of "data

message" had been the subject of extensive discussions in the Working Group and

adequately took into account technologies currently available, while not

excluding possible future technologies. Great care should therefore be exercised

in amending that definition, particularly in view of the need for ensuring that

the definition would be compatible with the remaining provisions of the Model

Law. The word "analogous", in that context, was used so as to make clear that

the list was merely illustrative. The deletion of that word and its replacement

by the word "digital" would have the undesirable result of making the list

appear to be exhaustive, thus rendering the definition too narrow.

 

120. It was also noted that the word "digital" related to the information,

rather than to the medium by which such information was generated, stored or

communicated and that digital data, as well as analog data, could be transmitted

electronically or optically. Therefore, it would not be accurate to refer to

"digital means". It was instead suggested, if the Commission deemed such a

reference to be necessary, that the word "digital" be inserted before the word

"information". However, the view was also expressed that a reference to "digital

information" would constitute an undesirable limitation to the meaning of the

word "information" as it would, for instance, exclude analog information. There

were also objections to an alternative proposal to insert the words "in digital

or analog form" after the word "communicated", since it was felt that, in

general, any attempt to qualify either the nature of the information or the

means by which the information was generated, stored or communicated by

referring to currently available technologies might render the Model Law

inadequate for technologies that might become available in the future.

 

121. Since the main difficulty with the use of the word "analogous" was the

possible confusion with the word "analog", it was suggested that the reference

to "analogous means" could be replaced by a reference to "similar means".

However, it was pointed out that the meaning of the word "similar" was not

identical with the meaning of the word "analogous". In the context of

subparagraph (a), the expression "analogous means" would encompass other means

that might be used to perform functions parallel to the functions performed by

the means listed therein, without necessarily being "similar" in substance to

those means. It was noted in that connection that "electric" and "optical"

means, while "analogous", were not, strictly speaking, "similar".

 

122. It was generally felt that the thrust of the provision, as well as of the

Model Law as a whole, was to cover messages that were generated, stored, or

communicated in essentially paperless form. It was thus proposed that the Guide

to Enactment could further clarify the thrust of the definition and address some

of the concerns expressed during the discussions in the Commission. There was

general agreement that the difficulties identified by the Commission in the

definition of "data message" as contained in draft article 2 (a) were in fact of

a linguistic rather than a substantive nature, which could be solved with

appropriate comments in the Guide. After discussion, the Commission thus found

the substance of subparagraph (a) to be generally acceptable and referred it to

the drafting group (for continuation of the discussion, see para. 197 below).

 

Subparagraph (b) (Definition of "Electronic data interchange (EDI)")

 

123. The view was expressed that the expression "transfer from computer to

computer" was somehow restrictive, as the transfer of information might not

always take place directly between computers. Information could in fact be

generated in a computer, be stored in digital form (e.g., on a diskette) and be


transferred manually for later retrieval in another computer. It was thus

proposed to use the word "computer-based information" to cover also situations

where digital data were not directly transferred from computer to computer.

 

124. In response it was pointed out that the definition used in subparagraph (b)

was based on a text adopted by the Working Party on Facilitation of

International Trade Procedures (WP.4) of the Economic Commission for Europe,

which defined EDI as follows:

 

"Electronic Data Interchange (EDI): The electronic transfer from computer to

computer of commercial or administrative transactions using an agreed standard

to structure the transaction or message data."

 

It was generally agreed that the definition of EDI in the Model Law should be

consistent with that definition. The Commission decided to retain the wording of

subparagraph (b) and recommended that the Guide to Enactment should make it

clear that digital data manually transferred, irrespective of whether they would

be regarded as covered by the definition of EDI in subparagraph (b), would be

covered by the definition of "data message" in subparagraph (a).

 

Subparagraph (c) (Definition of "Originator")

 

125. Concerns were expressed that, in its current wording, the definition of

"originator" might encompass not only the actual generator of a data message,

but also a recipient who stored a data message, or another person who received a

data message and forwarded it to the ultimate addressee. Moreover, the current

wording of subparagraph (c) seemed to make it possible that a message might have

two originators: one who generated the message, and one who stored it. The

concern was also expressed that, as currently drafted, the definition of

"originator" might encompass agents of the actual originators. With a view to

clarifying the scope of the definition, it was proposed to insert the words

"prior to being" before the words "stored or communicated". Such an addition

would make it clear that a person who merely received and stored, or received

and forwarded, a data message was not an "originator" within the meaning of the

Model Law.

 

126. The Commission engaged in a general discussion of the use of the words

"generated, stored or communicated" in subparagraph (c). It was recalled that

the reference to "storage" of a data message had been inserted in subparagraph

(c) so as to make it clear that the Model Law covered not only information that

was generated and communicated, but also information that was stored without

being communicated, such as records and accounts. However, it was observed that,

in its current wording, subparagraph (c) seemed to attribute equal weight to the

actions of generating, storing and communicating a message, which was not

actually intended by the Model Law. It was felt important to emphasize the

action of generating a message as the basic criterion for defining the

originator.

 

127. In reply to the above-mentioned proposal, it was pointed out that the

addition of the words "prior to" would also qualify the action of communicating

a data message, thus relegating such action, which constituted the thrust of

chapter III of the Model Law, to a somewhat secondary position. Several

alternative proposals were formulated, including: (a) deletion of the word

"stored" and retention of the remainder of the text; and (b) replacement of the

words "generated, stored or communicated" by the words "generated and

communicated prior to storage" or by the words "generated or communicated, prior

to storage, if any".

 

128. After discussion, the Commission confirmed the general policy that the

definition of "originator" should cover not only information that was generated

and communicated, but also information that was generated and stored without

being communicated. It was also decided that the definition of "originator"

should be drafted so as to eliminate the possibility that a recipient who merely

stored a data message might be regarded as an originator. After discussion, the

Commission referred subparagraph (c) to the drafting group for implementation of

those policy decisions in the text, which was otherwise found to be generally

acceptable. It was also agreed that the Guide to Enactment should reflect the

above discussion.

 

129. It was questioned whether the words "purports to have been" were necessary

in the context of subparagraph (c) in view of the fact that questions relating

to the attribution of a data message were covered in article 11 of the Model

Law. It was recalled that those words had been retained in the definition of

"originator" because the word "originator" was also used in other provisions,

particularly in chapter II of the Model Law, and not only in article 11. It was

suggested that the word "originator" should be deleted from article 6 and

replaced by the word "signer", to the effect that there would no longer be a

need for retaining the words "purports to have been" in subparagraph (c). In

reply it was pointed out that the words "purports to have been" were essential

in the context of subparagraph (c), since article 11 also dealt with situations

where a data message might be attributed to the originator even though it was

sent by a different person. It was thus necessary to make clear the difference

between an originator and an impersonator pursuant to paragraph (3) (b) of

article 11. The proposed amendment to article 6 was also objected to on the

ground that, whereas the term "originator" was well defined, there was no

definition of "signer" in the Model Law and the use of such a term might lead to

confusion.

 

Subparagraph (d) (Definition of "Addressee")


 

130. A concern was expressed that the word "person" in subparagraph (d) might be

given a restrictive interpretation so as to cover only individuals. In reply, it

was said that the word "person" was also used elsewhere in the Model Law and in

other texts adopted by the Commission and that it had always been the

understanding of the Commission and the Working Group that the word "person"

also covered legal entities.

 

131. The view was expressed that the definition of "addressee" was not

sufficiently precise and that it might be preferable to use a notion such as

"the ultimate recipient of a data message" instead of the words "a person who is

intended by the originator to receive the data message". It was stated that the

notion of "ultimate recipient" provided an objective criterion, which did not

make it necessary to investigate the intent of the originator to identify the

addressee. However, the suggested wording was not adopted, in view of the

difficulties it might create where the message was misdirected and the "ultimate

recipient" was not the intended addressee. After discussion, the Commission

found the substance of subparagraph (d) to be generally acceptable and referred

it to the drafting group.

 

Subparagraph (e) (Definition of "Intermediary")

 

132. A question was raised as to the purpose of including a definition of

"intermediary" in article 2, since that expression did not appear in any other

provision of the Model Law. It was pointed out that references to "intermediary"

were made only in subparagraphs (c) and (d) of article 2 and with the sole

purpose of excluding intermediaries from the scope of the definitions of

"originator" and "addressee". The view was also expressed that the definition of

"intermediary" was too broad and that it might be interpreted as encompassing

all agents or employees of the originator or the addressee.

 

133. In reply, it was pointed out that the presence of a definition of

"intermediary" and the fact that the Model Law expressly provided that

intermediaries were neither "originators" nor "addressees" had been regarded as

necessary by individuals and organizations engaging in electronic commerce. It

was felt that the presence of that definition was a reassurance that the Model

Law would not interfere with the activities of such intermediaries. At the same

time, it was felt that the definition did not exclude from the field of

application of the Model Law any persons or categories of persons that were

supposed to be covered by the Model Law. With regard to agents, it was pointed

out that, to the extent that agents acted on behalf of the originator or the

addressee, their actions were deemed to be those of the originator or the

addressee, as the case might be. They were not "intermediaries" for the purposes

of the Model Law, which was clear from the formulation of subparagraphs (c) and

(d). It was pointed out that the definition of "intermediary" had been

extensively discussed in the Working Group, which had considered possible

alternative wordings, such as an express reference to "service providers". It

was recalled that, in view of the difficulties raised by the need to define the

functions of "service providers", the Working Group had eventually agreed to

maintain the reference to "intermediary".

 

134. A proposal was made to clarify the scope of the definition contained in

subparagraph (e) by defining "intermediary" as a person "whose business is to

provide services of receiving, transmitting or storing data messages to another

person" or "on behalf of another person". With a view to improving on that

proposal, it was suggested that wording could be introduced to make it clear

that the definition did not cover only those persons whose sole activity was to

act as "intermediaries". Alternative phrases such as "in the business of" or "as

part of its business" were suggested for inclusion after the word "person".

Those proposals were objected to on the ground that, as had been previously

discussed in the Working Group, it might happen that a person received,

transmitted or stored data messages for another person without such activities

being regarded as that person's main business. It was generally agreed that the

Model Law should be flexible enough to cover also those persons who only

sporadically acted as intermediaries.

 

135. The prevailing view was that the definition of "intermediary" was necessary

so as to limit the scope of the definitions of "originator" and "addressee" and

that a restrictive wording in subparagraph (e) might leave out categories that

should be covered by the definition of "intermediary". After discussion, the

Commission found the substance of subparagraph (e) to be generally acceptable

and referred it to the drafting group.

 

Subparagraph (f) (Definition of "Information system")

 

136. It was suggested that, for semantic reasons, the word "system" should not

be used in the definition of "information system" and that the word "technology"

should be used instead. However, it was pointed out that "technology" might not

be a satisfactory alternative, since that word was generally used to refer to a

specific know-how or means of performing an activity or achieving a result

(e.g., computer technology). The word "system", in turn, had the usual

connotation of an operational capability.

 

137. It was generally agreed that, since subparagraph (a) defined "data message"

as "information" generated, stored or communicated by electronic means, the

reference to "information in a data message" in subparagraph (f) seemed to be

redundant. It was thus agreed to replace the words "information in a data

message" by the words "data messages". It was also felt that, for reasons of

consistency, the wording of subparagraph (f) should mirror that of paragraph (1)

of article 10. The Commission thus decided that the words "or otherwise

processing" should be added after the word "storing".


 

138. After discussion, the Commission found the substance of subparagraph (f),

as amended, to be generally acceptable and referred it to the drafting group.

 

 

 

Specific rules concerning transport documents

 

139. The Commission had before it the text of a draft article x approved by the

Working Group at its thirtieth session (A/CN.9/421), which read as follows:

 

 

 

"PART II. RULES CONCERNING TRANSPORT DOCUMENTS

 

"Draft article x. Contracts of carriage of goods

involving data messages

 

"(1) This article applies to any action in connection with, or in pursuance of,

a contract of carriage of goods, including but without limitation to:

 

"(a) (i) furnishing the marks, number, quantity or weight of goods;

 

(ii) stating or declaring the nature or value of goods;

 

(iii) issuing a receipt for goods;

 

(iv) confirming that goods have been loaded;

 

"(b) (i) notifying a person of terms and conditions of the contract;

 

(ii) giving instructions to a carrier;

 

"(c) (i) claiming delivery of goods;

 

(ii) authorizing release of goods;

 

(iii) giving notice of loss of, or damage to, goods;

 

"(d) giving any other notice in connection with the performance of the contract;

 

 

"(e) undertaking, irrevocably or not, to deliver goods to a named person or a

person authorized to claim delivery;

 

"(f) granting, acquiring, renouncing, surrendering, transferring or negotiating

rights in goods;

 

"(g) acquiring or transferring rights and obligations under the contract.

 

"(2) Where a rule of law requires that any action referred to in paragraph (1)

be carried out in writing or by using a paper document, or provides for certain

consequences if it is not, that rule is satisfied if the action is carried out

by using one or more data message.

 

"(3) Where one or more data message is used to effect the actions in paragraph

(1) (f) and (g) of this article, no paper document used to effect such actions

is valid unless the use of data messages has been terminated and substituted by

the use of paper documents. Such a substitution shall not affect the rights, or

relieve the obligations, of the parties involved.

 

"(4) If a right is to be granted to, or an obligation is to be acquired by, one

person and no other person, and if a rule of law requires that, in order to

effect this, the right or obligation must be conveyed to that person by the

transfer, or use of, a paper document, that rule is satisfied if the right or

obligation is conveyed by any means which includes the use of one or more data

message, provided a method is used to give reliable assurance that the right or

obligation has become that of the intended person and of no other person.

 

"(5) Where any question is raised as to whether paragraph (3) of this article is

satisfied, the standard of reliability required shall be assessed in the light

of the purpose for which the right or obligation was conveyed and in the light

of all the circumstances, including any agreement between the parties.

 

"(6) If a rule of law is compulsorily applicable to a contract of carriage of

goods which is in, or is evidenced by, a paper document, that rule shall not be

rendered inapplicable to a contract of carriage of goods which is evidenced by


one or more data message by reason of the fact that the contract is evidenced by

such data message or messages instead of by a paper document.

 

"(7) The provisions of this article do not apply to the following: [...]"

 

Scope of draft article x

 

140. It was noted that the carriage of goods was the context in which electronic

communications were most likely to be used and in which a legal framework

facilitating the use of such communications was most urgently needed. It was

also noted that draft article x contained provisions that applied equally to

non-negotiable transport documents and to transfer of rights in goods by way of

transferable bills of lading. It was generally felt it should be made clear that

the principles embodied in draft article x were applicable not only to maritime

transport but also to transport of goods by other means, such as road, railroad

and multimodal transport.

 

Relationship between draft article x and the other provisions of the draft Model

Law

 

141. It was pointed out that draft article x contained rules of a rather

specific nature, as distinct from the general rules contained in part I of the

Model Law, and that the Commission had to decide on the adequate location of

draft article x in the Model Law. In that connection, it was recalled that the

Working Group had considered various suggestions as to how best to make it clear

in the structure of the text that the Model Law combined rules that were aimed

to be of general application with provisions specifically designed for transport

documents and, possibly, with other specific provisions that might be added at a

later stage. The Working Group had decided to place draft article x in a

separate part II of the Model Law.

 

142. A proposal was made to place draft article x in an annex to the Model Law.

It was stated that the advantage of placing the provisions of draft article x in

an annex was that it might make it easier to add other specific provisions,

possibly to be developed at a later stage. However, a concern was expressed that

placing draft article x in an annex could have the unintended result of raising

doubt as to the legal value of that article, as to its relevance to the rest of

the Model Law and as to the level of approval with which it was met in the

Commission. It was also stated that, if the Commission wished to retain the

possibility of adding other specific provisions to the Model Law in the future,

it might be preferable, from a systematic viewpoint, to divide the Model Law

into two parts (e.g. "General Part" and "Specific Part"), each subdivided into

chapters.

 

143. After discussion, the Commission agreed that the draft article should

appear in the Model Law in a way that reflected both the specific nature of the

provisions regarding transport documents and their legal status, which should be

the same as that of the general provisions contained in chapters I to III of the

draft Model Law. It was agreed that draft article x should form chapter I of

part II. It was stated that adopting such a structure would make it easier to

add further specific provisions to the Model Law, as the need might arise, in

the form of additional chapters in part II. In addition, it was agreed that the

interplay of draft article x and the other provisions of the draft Model Law

might need to be explained in the text of the Guide to Enactment of the Model

Law.

 

144. As to the structure of draft article x itself, there was general agreement

that, as its individual provisions would constitute the entirety of chapter I of

part II, they should, to the extent possible, be divided into separate articles.

In addition to improving the readability of the provisions, such a division

would also ensure the symmetry with the remaining chapters of the Model Law,

which all consisted of more than one article. The matter was referred to the

drafting group.

 

Paragraph (1)

 

145. A concern was expressed that the adoption of a specific set of rules

dealing with transport documents might imply that the other provisions of the

draft Model Law would not be applicable to such documents. In particular, it was

stated that some jurisdictions might not wish to implement the provisions of

draft article x concerning transfer of rights in goods unless an assurance was

given that the guarantees of reliability and authenticity contained in articles

6 and 7 of the Model Law were also applicable to electronic equivalents to

transport documents. It was generally agreed that draft article x did not in any

way limit or restrict the field of application of the general provisions of the

draft Model Law and that its purpose was to provide for a specific application

of those general provisions in the context of the use of transport documents.

 

146. After deliberation, the Commission decided that appropriate wording should

be added to paragraph (1) of article x to clarify that the general rules

contained in part I of the Model Law applied to the subject-matter covered by

draft article x and that a corresponding explanatory note to that effect should

be contained in the Guide to Enactment of the Model Law. The matter was referred

to the drafting group.

 

147. For purposes of clarity, the Commission decided to add the words "or

statement" after the word "notice" in paragraph (1) (d). The Commission further

decided to delete the words "irrevocably or not" in paragraph (1) (e). It was


felt that those words, which had been originally included in the text for

illustrative purposes, were unnecessary, as the rule contained in paragraph (1)

(e) was broad enough to encompass both revocable and irrevocable undertakings.

 

Paragraph (2)

 

148. Various views were expressed and suggestions were made with respect to the

substance and the wording of paragraph (2). It was pointed out that the phrase

"or provides for certain consequences if it is not" had been inserted in

paragraph (2) to deal with the situation where, although it was not required by

law that information be in writing, a rule of law would provide for certain

consequences if such information were voluntarily put in writing. It was

observed that the wording adopted by the Working Group might not unequivocally

solve the question of whether, in the above-mentioned situation, data messages

would be regarded as functionally equivalent to paper. It was generally felt

that paragraph (2) needed to be redrafted to make it clear that data messages

would be regarded as equivalent to paper, both where the use of specific

documents was mandated by law and where parties could freely choose to perform

an act by means other than writing, but doing so would carry an adverse

consequence. A suggestion was made that the words "or provides for certain

consequences if it is not" should be deleted and that a second sentence should

be inserted along the following lines:

 

"This paragraph applies whether the requirement imposes an obligation or whether

it is a condition of the validity, effectiveness or enforceability of the

action."

 

In that connection, it was noted that articles 5, 6 and 7 of the draft Model Law

contained provisions that shared the structure of paragraph (2) (for

continuation of the discussion in the context of articles 5, 6 and 7 of the

draft Model Law, see para. 181 below). There was general agreement that the

issue was purely one of drafting, and the matter was referred to the drafting

group, together with the remainder of the substance of paragraph (2), which was

found to be generally acceptable.

 

Paragraph (3)

 

149. The Commission was reminded of the discussion that took place in the

Working Group regarding concerns that paper documents and data messages might be

simultaneously used in connection with the same contract of transport. It was

noted that paragraph (3) attempted to address such concerns, while preserving

the possibility of the parties reverting from data message interchange to

paper-based transactions, if the circumstances so required. A question was

raised as to the need for a provision such as paragraph (3), which was felt to

impose a requirement of exclusivity and thus to impinge upon party autonomy. In

response it was noted that paragraph (3) was a necessary complement to the

guarantee of singularity contained in paragraph (4). The need for security was

an overriding consideration and it was essential to ensure not only that a

method was used that gave reasonable assurance that the same data message was

not multiplied, but also that no two media would be simultaneously used for the

same purpose. Paragraph (4) itself did not address that problem directly. With a

view to making patent the complementary nature of paragraph (3) vis-а-vis

paragraph (4), it was suggested that the order of those paragraphs should be

reversed.

 

150. The Commission generally felt that paragraph (3) was useful in that it

addressed the fundamental need to avoid the risk of duplicate transport

documents. In that connection, it was observed that the use of multiple forms of

communication for different purposes, e.g., paper-based communications for

ancillary messages and electronic communications for bills of lading, did not

pose a problem. However, it was essential for the operation of any system

relying on electronic equivalents of bills of lading to avoid the possibility

that the same rights could at any given time be embodied both in data messages

and in a paper document.

 

151. Paragraph (3) was also useful in that it envisaged the situation where a

party having initially agreed to engage in electronic communications had to

switch to paper communications where it later became unable to sustain

electronic communications. Various views were expressed as to how the decision

to "drop down" to paper could be made. One view was that, since EDI

communications were usually based on the agreement of the parties, a decision to

return to paper communications should also be subject to the agreement of all

interested parties. Otherwise, the originator would be given the power to choose

unilaterally the means of communication. Another view was that a rule along the

lines of paragraph (3) would have to be applied by the bearer of a bill of

lading and that it should be up to the bearer to decide whether it preferred to

exercise its rights on the basis of a paper bill of lading or on the basis of

the electronic equivalent of such a document, and to bear the costs for its

decision.

 

152. With a view to accommodating some of the concerns expressed during the

discussion of paragraph (3), the following alternative text was proposed for

consideration by the Commission:

 

"(3) Where one or more data messages have been used to effect any of the actions

in paragraph (1) (f) or (g) of this article, and a paper document is

subsequently to be used to effect any such action, no such paper document is

effective for the purpose of any rule of law mentioned in paragraph (4) of this

article, unless:


 

"(a) as between the person subject to the obligation to deliver and the holder

of a right acquired by means of a data message, the use of data messages for

this purpose has ceased to be valid; and

 

"(b) the paper document contains a statement that data messages may no longer

validly be used for such purposes in place of the paper document.

 

"Any such replacement of a data message by a paper document shall not have the

effect of modifying any existing right or obligation."

 

153. It was explained by the proponents of the alternative text that

subparagraph (a) had been added to the original text to make it clear that the

rule contained therein was intended to apply to the person subject to the

obligation to deliver and the holder of a right in the goods, and not to other

parties to the contract of carriage or to the transaction underlying the

contract of carriage. Subparagraph (b) had been added to create an obligation to

give notice to possible future parties that there had been exchange of data

messages prior to the parties issuing paper documents. A number of objections

were raised to the substance and the form of the above proposal. One objection

stemmed from the interpretation that subparagraph (b) would prevent the parties

from reverting to data messages once they had "dropped down" to paper. Another

objection was that making the inclusion of such a statement a condition of

validity of the bill of lading would in fact result in penalizing the holder for

the intentional or unintentional failure by the previous holder to include the

statement in the bill of lading.

 

154. As another alternative to paragraph (3), the following text was also

proposed:

 

"(3) Where one or more data messages are used to effect the actions in paragraph

(1) (f) and (g) of this article, and a paper document is subsequently to be used

to effect such actions, no such paper document is valid for this purpose unless

the use of data messages has been discontinued and unless it contains a

statement that the use of data messages has been replaced by the use of the

paper document. Such replacement shall not have the effect of modifying any

existing right or obligation of the parties involved."

 

155. That proposal did not meet with sufficient support. After discussion, there

was general agreement that the alternative provision was in fact very similar in

substance to the original paragraph (3) and that it was preferable to use the

original text as the basis for deliberation by the Commission. It was agreed

that, in order to provide the desired notice to third parties of the previous

existence of data messages interchange, which the Commission considered to be

good practice, as provided in the CMI Rules for Electronic Bills of Lading, the

following sentence would be added after the first sentence of paragraph (3):

 

"Any paper documents issued shall contain a statement of such termination."

 

156. The Commission found that, with the addition of that sentence, the

substance of paragraph (3) was generally acceptable and referred it to the

drafting group, which was also requested to consider the question of the

appropriate location of paragraph (3).

 

Paragraph (4)

 

157. It was generally agreed that paragraph (4) was the core provision of the

article. Paragraph (4) was intended to ensure that a right could only be

conveyed to one person, and that it would not be possible for more than one

person at any point in time to lay claim to it. That effect of the paragraph was

to introduce a requirement commonly referred to as the "guarantee of

singularity".

 

158. An objection was raised with respect to the use of the words "one person

and no other person". It was pointed out that those words might be interpreted

as excluding situations where more than one person might jointly hold title to

the goods. However, it was pointed out that the word "person" in the above

proposal would not necessarily entail that there could not be multiple

consignees, if all parties so agreed. It was pointed out that the word "person"

was used, for example, in article 15 of the United Nations Convention on

International Bills of Exchange and International Promissory Notes, without such

limiting connotation. It was felt that, in order to avoid misunderstandings as

to the meaning of the above-mentioned phrase, the Guide to Enactment of the

Model Law should contain a comment to the effect that the reference to "one

person" would not exclude joint ownership of rights in the goods or other rights

embodied in a bill of lading.

 

159. The Commission discussed the method for giving the reliable assurance

required by paragraph (3) that "the right or obligation has become that of the

intended person and of no other person". It was pointed out that the thrust of

the provision was to require that the means for transferring the rights or

acquiring obligations, as the case might be, should be sufficiently secure so as

to reasonably rule out the possibility that such rights or obligations could

also be transferred to, or acquired by, other persons. As a matter of drafting,

the view was expressed that the formulation contained in paragraph (4) did not

adequately express the thrust of that provision, since the "method" itself could

not generate the desired "reliable assurance".


 

160. Various proposals were made to clarify the scope of paragraph (4) and

improve its wording. One proposal was to substitute the words "provided that the

method used to effect such conveyance was sufficiently reliable so as to

designate as beneficiary of such conveyance the intended person only and no

other person". Another proposal was to delete that same clause and replace it

with the words "provided a method is used to give reliable assurance that the

right or obligation becomes vested in the intended person and in no other

person". After discussion, the following consolidated proposal was submitted to

the Commission:

 

"Under a contract of carriage, if a right is to be granted to, or an obligation

is to be acquired by, one person and no other person, and the law requires that,

in order to effect this, the right or obligation must be conveyed to that person

by the transfer, or use, of a paper document, that requirement is satisfied if

the right or obligation is conveyed by any means which includes the use of one

or more data messages, provided a method is used to give reliable assurance that

the right or obligation becomes vested in the intended person and in no other

person."

 

161. The Commission continued the discussion on the basis of the consolidated

proposal. As a matter of drafting, it was agreed that the words "[u]nder a

contract of carriage" should be deleted, since they restated unnecessarily the

sphere of application of the article. It was also agreed that the words "any

means which includes" were redundant and should be deleted. With respect to

substance, the discussion focused on the last clause of the proposed text. It

was generally felt that the formulation contained therein did not solve the

difficulties encountered in the original text of paragraph (4). The view was

expressed that both paragraph (4) as adopted by the Working Group and the above

consolidated proposal were flawed from the standpoint of logic, in that they

made the validity of the transfer of a right dependent on the use of a method

that was apt to ensure that the right had been transferred to a certain person.

In order to overcome the circular aspect of the provision, it was suggested that

the final proviso in paragraph (4) should refer not to any legal consequence of

the communication (e.g., the transfer of a right) but to a fact (e.g., guarantee

of singularity of the message). In that respect, there was general agreement

that the difficulties identified in the current wording of paragraph (4) would

be probably resolved if the notion of "reliable assurance" were to be linked to

the concrete situations that the provision aimed at avoiding, namely, that

multiple messages might be sent to different addresses for the purpose of

conveying the same right or creating the same obligation.

 

162. A suggestion was made to replace the proviso at the end of paragraph (3) by

the words: "provided that a method is used to give a reliable assurance that no

other data message has been or may be used by the transferor for the purpose of

transferring such right or obligation to more than one person at any given

time". Another proposal aimed at the same result was to replace the phrase

"right or obligation becomes vested in the intended person and in no other

person" with a wording such as "such data messages are unique".

 

163. After discussion, the Commission agreed on the need to amend the end of

paragraph (3) as suggested. For the sake of brevity, it was decided that wording

along the lines of "such data messages are unique" was to be preferred. The

matter was referred to the drafting group.

 

Paragraph (5)

 

164. Having regard to the specific field of application of article x, it was

proposed to add the words "to the contract of carriage" after the words "the

parties" in paragraph (5). However, that proposal was felt to be too restrictive

and not in line with paragraph (1), which listed actions that might not

necessarily be performed by the actual parties to the contract of carriage, but

also by other participants in the process of carriage and in related

transactions.

 

165. As a matter of drafting, it was agreed that the words "[w]here any question

is raised as to whether" seemed to require that a question should be actually

raised in order for the reliability test provided for in that provision to be

applied. Those words were generally found to be unclear and it was decided to

replace them by the words "[f]or the purposes of paragraph (4)".

 

166. After discussion, the Commission found the substance of paragraph (5) to be

generally acceptable and referred it to the drafting group.

 

Paragraph (6)

 

167. It was recalled that the purpose of paragraph (6) was to deal directly with

the application of certain laws to contracts for the carriage of goods by sea.

For example, under the Hague and Hague-Visby Rules, a contract of carriage meant

a contract that was covered by a bill of lading. Use of a bill of lading or

similar document of title resulted in the Hague and Hague-Visby Rules applying

compulsorily to a contract of carriage. It was noted that, at present, those

rules would not automatically apply to contracts effected by one or more data

message. Thus, a provision such as paragraph (6) was needed to ensure that the

application of those rules would not be excluded by the mere fact that data

messages were used instead of a bill of lading in paper form.

 

168. There was general agreement that it was necessary to provide clearly for

the applicability to a carriage contract contained in, or evidenced by, data


messages of the rules of law that would have been applicable to the same

contract, had it been contained in, or evidenced by, a paper bill of lading.

 

169. It was questioned whether the result intended by paragraph (6) was not

already achieved by paragraph (2), which provided that, where a law required

that any of the actions listed in paragraph (1) had to be carried out in writing

or by using a paper document, that requirement was satisfied if the action was

carried out by using one or more data messages. In response, it was stated that,

while paragraph (2) ensured that data messages would be effective means for

carrying out any of the actions listed in paragraph (1), that provision did not

deal with the substantive rules of law that might apply to a contract contained

in, or evidenced by, data messages.

 

170. Views were exchanged concerning the meaning of the phrase "that rule shall

not be rendered inapplicable" in paragraph (6). It was suggested that a simpler

way of expressing the same idea would be to provide that rules applicable to

contracts of carriage evidenced by paper documents should also apply to

contracts of carriage evidenced by data messages. In response, it was stated

that, given the broad scope of application of draft article x, which covered not

only bills of lading but also a variety of other transport documents, such a

simplified provision might have the undesirable effect of extending the

applicability of rules such as the Hamburg Rules and the Hague-Visby Rules to

contracts to which such rules were never intended to apply. In the context of

the proposed addition to draft article x, it was important to overcome the

obstacle resulting from the fact that the Hague-Visby Rules and other rules

compulsorily applicable to bills of lading would not automatically apply to

contracts of carriage evidenced by data messages, without inadvertently

extending the application of such rules to other types of contracts.

 

171. The wording of paragraph (6) was found to be difficult of understanding,

and the Commission considered a number of alternative formulations to the draft

text. It was agreed, for purposes of clarity, to delete the word "rendered" and

to insert the word "such" before the words "a contract of carriage of goods

which is evidenced by one or more data message". As to the remainder of the

provision, it was generally felt that the substance of paragraph (6) adequately

reflected the policy adopted by the Commission. It was also held that an attempt

to arrive at a simpler formulation, however desirable such a formulation might

be, was not likely to result in a substantive improvement to the text. After

discussion, the Commission found the amended text of paragraph (6) to be

generally acceptable and referred it to the drafting group.

 

Paragraph (7)

 

172. The Commission found the substance of paragraph (7) to be generally

acceptable and referred it to the drafting group.

 

 

 

C. Other issues to be considered with respect to

the draft Model Law

 

173. The Commission proceeded with a discussion of issues related to the title

of the Model Law and to articles 1 and 3 to 11, on which it had postponed its

final decision at its twenty-eighth session. It was also felt that certain

changes might have to be made to the text of articles 1 and 3 to 11 as a result

of the adoption of articles 2 and 12 to 17. Subject to the decisions reflected

below, the Commission approved the substance of articles 1 and 3 to 11 and

referred them to the drafting group for final review.

 

 

 

1. Title of the draft Model Law

 

174. The Commission noted that, at its twenty-eighth session, it had postponed

its final decision with respect to the title of the Model Law. It had been

agreed that the issue would need to be reverted to after the Commission had

completed its review of draft articles 1 and 2. 11/

 

175. There was agreement in the Commission that the title of the draft Model Law

("UNCITRAL Model Law on Legal Aspects of Electronic Data Interchange (EDI) and

Related Means of Communication") was too long, and did not describe the content

of the draft Model Law with sufficient clarity. As to the particular words used

in the title, a number of concerns were expressed. One concern was that the

words "model law on legal aspects" were redundant and too vague for the title of

a legislative text. Alternatively, those words were said to create the mistaken

impression that the text dealt with all the legal issues that might be related

to the use of EDI. Another concern was that the words "electronic data

interchange and related means of communication" were inappropriate. While the

words "related means of communication" were too vague to convey any clear

meaning in the context of a title, the focus being placed on EDI might lead to

the erroneous conclusion that the Model Law was of relevance only to a limited

range of techniques involving the highest degrees of automation in

computer-based communication. Such a title would therefore not convey the

information that, in fact, the Model Law dealt with activities that went far

beyond EDI, as was clearly indicated in subparagraph (a) of article 2.

 

176. It was proposed that the draft Model Law should be entitled "Model Law on

Electronic Commerce". It was noted that the proposal had been made at the

twenty-eighth session of the Commission and rejected mainly for the reason that


it raised questions relating to the scope of application of the draft Model Law.

12/ It had then been feared that such a title might be misread as restricting

the ambit of the draft Model Law to commercial activities, while the intention

was to allow enacting States to apply the draft Model Law to a wider range of

activities in which modern communication techniques were being used.

 

177. While the Commission reaffirmed that the scope of the Model Law did not

have to be restricted to the commercial sphere, it was generally felt that

recent developments had made it clear that the expression "electronic commerce"

had become widely used to refer to a broad range of activities that had in

common the use of telecommunication and might encompass such varied techniques

as electronic mail communicated with or without the use of such infrastructure

as the Internet, EDI and telecopy or telex. In addition, it was pointed out that

the notion of "electronic commerce" had become so broadly used that it covered

the use of modern means of communication not only in the commercial sphere but

also in other areas. It was generally agreed that a reference to "electronic

commerce" was the only way to convey in a short title sufficient information as

to the broad scope of communication and storage techniques covered by the Model

Law. After discussion, the Commission adopted the above proposal.

 

 

 

2. Footnote **** to article 1

 

178. The Commission noted that, as adopted at its twenty-eighth session, the

text of footnote **** to article 1 ("Sphere of application") contained two

alternative wordings between square brackets. Footnote **** read as follows:

 

"**** The Commission suggests the following text for States that might wish to

extend the applicability of this Law:

 

"This Law applies to any kind of information in the form of a data message [used

in the context of ...] [, except in the following situations: ...]."

 

179. The Commission adopted the second alternative wording, so that the

suggested text would read: "This Law applies to any kind of information in the

form of a data message, except in the following situations: [...]". The first

alternative was rejected on the ground that, by enumerating the areas of

application of the Model Law, the legislator might unintentionally leave out

areas that deserved to be covered by the uniform legislation. The adopted text

was referred to the drafting group.

 

 

 

3. Paragraphs (1) of articles 5, 6 and 7

 

180. A concern was expressed with respect to the way in which the opening words

of paragraphs (1) of articles 5, 6 and 7, as adopted by the Commission at its

twenty-eighth session, would operate. Paragraph (1) of article 5 ("Writing") of

the draft Model Law as adopted by the Commission at its twenty-eighth session

read as follows:

 

"(1) Where a rule of law requires information to be in writing or to be

presented in writing, or provides for certain consequences if it is not, a data

message satisfies that rule if the information contained therein is accessible

so as to be usable for subsequent reference."

 

Paragraph (1) of article 6 ("Signature") of the draft Model Law as adopted by

the Commission at its twenty-eighth session read as follows:

 

"(1) Where a rule of law requires a signature, or provides for certain

consequences in the absence of a signature, that rule shall be satisfied in

relation to a data message if:

 

"(a) a method is used to identify the originator of the data message and to

indicate the originator's approval of the information contained therein; 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 agreement between the originator and the addressee

of the data message."

 

Paragraph (1) of article 7 ("Original") of the draft Model Law as adopted by the

Commission at its twenty-eighth session read as follows:

 

"(1) Where a rule of law requires information to be presented or retained in its

original form, or provides for certain consequences if it is not, a data message

satisfies that rule if:

 

"(a) there exists a reliable assurance as to the integrity of the information

from the time when it was first generated in its final form, as a data message

or otherwise; and

 


"(b) where it is required that information be presented, that information is

capable of being displayed to the person to whom it is to be presented."

 

181. It was noted that these paragraphs shared a common structure to the effect

that a "rule of law", which "provides for certain consequences if" the relevant

paper document "is not" presented, "shall be satisfied" by a data message. It

was observed that the adopted wording might not unequivocally solve the question

whether, under such a structure, data messages would in all cases be regarded as

functionally equivalent to paper. It was generally felt that those paragraphs

needed to be redrafted to make it clear that data messages would be regarded as

equivalent to paper both where the use of specific documents was mandated by

law, and where parties could freely choose to perform an act by means other than

writing, but doing so would carry an adverse consequence. The drafting group was

entrusted with the redrafting of those provisions.

 

 

 

4. Notion of "originator" in paragraph (1) of article 6

 

182. The view was expressed that the references to "originator" in paragraph (1)

of article 6 ("Signature") unduly restricted the scope of the article. As

currently drafted, article 6 provided a functional equivalent for the written

signature of the originator of a data message but not for the signatures of

other persons that might appear on a paper document. For example, where a

document carried the signature of the originator and was subsequently endorsed

by a third party, article 6 did not expressly provide a functional equivalent

for the endorsement. It was generally agreed that the reference to the

originator should be replaced by a reference to the person whose signature was

required. The drafting group was entrusted with the redrafting of that article.

 

 

 

5. Rule of interpretation of contracts

 

183. It was recalled that the Commission, at its twenty-eighth session in 1995,

had considered and had not definitively decided the question whether there was a

need for a rule of interpretation for situations where contracts, especially

those concluded prior to the entry into force of the Model Law, created an

obligation to use a "writing" without specifying the meaning of "writing". 13/

 

184. The Commission took the view that it was preferable to leave that question

to the interpretation of the will of the parties, to the rules of interpretation

of the provisions enacted pursuant to the Model Law, and to any transitory

provisions that a State might wish to enact along with the Model Law. In support

of that decision it was said that, if the Model Law provided that a contractual

requirement for a "writing" could be met by an electronic data message, such a

provision could unjustifiedly displace the agreement of the parties.

 

 

 

6. Notion of "rule of law" in articles 5, 6, 7 and 9

 

185. The Commission considered the meaning of the notion of "rule of law", as

used in articles 5, 6, 7 and 9. It was generally agreed that the notion should

be understood to include statutory law; case-law to the extent it was recognized

as a source of law; and any customs and practices in so far as they had been

incorporated into the legal system of the State. The views did not entirely

coincide as to whether the customs and practices could become part of the law of

a State only by express incorporation or also by implication or interpretation.

It was, however, generally felt that "rules of law", as used in the Model Law,

were not meant to include areas of law that had not become part of the law of a

State and were sometimes, somewhat imprecisely, referred to by expressions such

as "lex mercatoria" or "law merchant".

 

186. It was noted that the UNCITRAL Model Law on International Commercial

Arbitration in its article 28 (1) also contained the concept "rules of law", but

that it had been generally understood that, there, the concept was indeed

intended to include also bodies of law that did not form part of the law of a

State. 14/

 

187. In order to express better the concept as described in paragraph 185 above,

and in order not give to the expression "rules of law" different meanings in two

texts elaborated by the Commission, the Commission decided to replace in the

draft Model Law the expression "rule of law" by the term "the law". It was

agreed that the Guide to Enactment would clarify the understanding of the

Commission as to the meaning of the term "the law".

 

 

 

7. Location of article 10

 

188. The Commission noted that, at its twenty-eighth session, it had reserved

for subsequent discussion the issue of the location of article 10 ("Variation by

agreement"). 15/ In view of the decision made at that session to include in that

article two paragraphs dealing with party autonomy in the context of chapters

III and II, respectively, it was generally agreed that article 10 should be

moved from chapter III to chapter I, which contained other general provisions

common to the entire Model Law. The drafting group was entrusted with the


necessary redrafting of paragraph (1).

 

 

 

8. Article 11

 

189. Subject to decisions reflected below with respect to paragraphs (2), (3)

(a) and (6), the Commission approved the substance of article 11 ("Attribution

of data messages") and referred it to the drafting group for review.

 

Paragraph (2)

 

190. It was suggested, and the Commission agreed, that paragraph (2) should

expressly cover also situations where a message was generated and sent

automatically pursuant to a computer program operated by or on behalf of the

originator.

 

Paragraph (3) (a)

 

191. The Commission recalled its discussion, at its twenty-eighth session in

1995, of the provision in paragraph (3) (a) (ii) and the serious concerns that

had been expressed regarding the provision. 16/ Those concerns were restated. It

was particularly emphasized that it would be inappropriate to provide that the

addressee would be entitled to regard a data message as that of the originator

even though the purported originator might never have sent that message, for

example, when the message had been sent by a fraudulent impersonator. Such a

provision would, without good reason, change the basic principle of contract law

that a person was not bound by actions of an impersonator or an agent without

authority, unless there existed special reasons for a different conclusion.

After discussion, the Commission decided to delete paragraph (3) (a) (ii).

 

192. A suggestion was made to add at the end of paragraph (3) (a) (i) the words

"and was reasonable in the circumstances". The purpose of the suggestion was to

exclude the possibility that the addressee would rely on the message in bad

faith, even if the addressee was or should be aware that the message had not

been authorized by the originator. The suggestion was not accepted on the ground

that it was unnecessary in the Model Law to provide for bad-faith reliance on a

message and that the addition might be construed as subjecting the effectiveness

of agreements of parties relating to authentication to vague criteria of

reasonableness.

 

193. It was observed that agreements as to the procedures for verifying the

source of messages were not necessarily entered into directly between the

originator and the addressee, but could also be concluded, on the one hand,

between the originator and a third-party service provider and, on the other

hand, between the third-party service provider and the addressee. It was

considered useful not to exclude from paragraph (3) (a) agreements that became

effective not through direct agreement between the originator and the addressee

but through the participation of third-party service providers. The Commission

adopted the suggestion and requested that it be reflected either in the

provision or in the Guide to Enactment. It was also suggested to clarify in the

Guide to Enactment that paragraph (3) (a) applied only when the communication

between the originator and the addressee was based on a previous agreement, but

that it did not apply in an "Open-edi" environment.

 

Paragraph (6)

 

194. The substance of paragraph (6) was approved, and the square brackets were

removed.

 

 

 

D. Report of the drafting group

 

195. The entire text of the draft Model Law was submitted to a drafting group

for implementation of the decisions of the Commission and revision to ensure

consistency within the text and among the language versions. The Commission, at

its 604th and 605th meetings, on 11 and 12 June 1996, considered the report of

the drafting group.

 

196. Various views and concerns were expressed with respect to the titles of

Part One and Part Two of the draft Model Law and about the title of chapter I in

Part One. A concern was expressed that the title "Electronic commerce in

general", particularly in language versions other than English, might be

misunderstood as dealing with trade in goods such as computer hardware or

software. It was thus suggested that the title of Part One should read "General

provisions", while the title of chapter I might be amended to enumerate the

titles of the articles contained therein. It was generally felt, however, that

the term "electronic commerce" should be used in the title of Part One, as it

was used in the title of the Model Law itself, to describe the various kinds of

communication and storage techniques covered by the general provisions of the

Model Law contained in Part One. It was also felt that it would be inappropriate

to deviate in chapter I from the title "General provisions" adopted for similar

provisions in other UNCITRAL texts, such as the UNCITRAL Model Law on

International Credit Transfers. As to the title of Part Two as presented by the

drafting group ("Specific aspects of electronic commerce"), the Commission

decided that it should be replaced by "Electronic commerce in specific areas",


to mirror the structure of the title of Part One and to reflect better the

contents of Part Two.

 

197. With respect to subparagraph (a) of article 2 (definition of "data

message"), the Commission resumed its earlier discussion of whether the text of

the definition should make reference to "analogous" means of communication (see

paras. 121-122 above). The view was expressed that including explanations in the

Guide to Enactment as to the meaning of the word "analogous" might not be

sufficient to dispel the risk that it could be confused with a reference to

"analog" information. Replacing the word "analogous" by "similar", although not

fully satisfactory, might create fewer difficulties than maintaining the wording

of subparagraph (a) as previously adopted. After discussion, the Commission

decided to replace the word "analogous" by the word "similar". It was agreed

that the Guide to Enactment would clarify that the word "similar" in that

context would connote "functionally equivalent".

 

198. Various concerns were expressed with regard to new article 17 ("Transport

documents") as presented by the drafting group. Paragraph (5) of article 17 as

presented by the drafting group (corresponding to paragraph (3) of draft article

X as approved by the Working Group at its twenty-eighth session) read as

follows:

 

"(5) Where one or more data messages are used to effect any action in

subparagraphs (f) and (g) of article (16), no paper document used to effect any

such action is valid unless the use of data messages has been terminated and

replaced by the use of paper documents. A paper document issued in these

circumstances shall contain a statement of such termination. The replacement of

data messages by paper documents shall not affect the rights or obligations of

the parties involved."

 

199. The view was expressed that the reference to "terminating" the use of data

messages was overly general and unclear. In particular, it did not provide

information as to: who would effect the termination; whether the termination

would have to be permanent; and what was the scope of the termination. It was

stated that the text as drafted was not limited to the use of data messages for

the purpose of transferring any particular right or obligation. Even if it was

read as meaning that the use of data messages for transferring a particular

right or obligation had been terminated, the paragraph was still unclear as to

whether it intended to prevent a data message being used even where the paper

document had been surrendered to the issuer. It was suggested that the paragraph

needed to be amended to clarify that the switch from data messages to a paper

document would not affect any right that there might exist to surrender the

paper document to the issuer and start again using data messages. To that

effect, it was suggested that the following sentence should be inserted in the

paragraph:

 

"Nothing in this paragraph shall affect any right to resume the use of data

messages for the purpose of conveying a right or obligation, provided that any

paper document previously used for this purpose has first been rendered

invalid."

 

200. Support was expressed for the inclusion of the suggested wording to clarify

that paragraph (5), while expressly dealing with the situation where the use of

data messages was replaced by the use of a paper document, was not intended to

exclude the reverse situation. The prevailing view was that the wording adopted

by the drafting group was sufficiently neutral in that respect. After

discussion, the Commission adopted the paragraph as proposed by the drafting

group and agreed that appropriate explanations should be contained in the Guide

to Enactment.

 

201. Paragraph (3) of article 17 as presented by the drafting group

(corresponding to para. (4) of draft article X as approved by the Working Group

at its twenty-eighth session) read as follows:

 

"(3) If a right is to be granted to, or an obligation is to be acquired by, one

person and no other person, and if the law requires that, in order to effect

this, the right or obligation must be conveyed to that person by the transfer,

or use of, a paper document, that requirement is met if the right or obligation

is conveyed by using one or more data messages, provided that a reliable method

is used to render such data message or messages unique".

 

202. The view was expressed that the notion that a data message should be

"unique" was unclear. On the one hand, it was stated, all data messages were

necessarily unique, even if they duplicated an earlier data message, since each

data message was sent at a different time from any earlier data message sent to

the same person. If a data message was sent to a different person, it was even

more obviously unique, even though it might be transferring the same right or

obligation. Yet, all but the first transfer might be fraudulent. On the other

hand, if "unique" was interpreted as referring to a data message of a unique

kind, or a transfer of a unique kind, then in that sense no data message was

unique, and no transfer by means of a data message was unique. It was thus

suggested that uniqueness of the data message, and uniqueness of the transfer,

were wrong concepts for the purposes of article 17. A proposal was made to

replace the words "provided that a reliable method is used to render such data

message or messages unique" by the following: "provided that a reliable method

is used to secure that data messages purporting to convey any right or

obligation of a person may not be used by or on behalf of that person

inconsistently with any other data messages by which the right or obligation was

conveyed by or on behalf of that person".

 


203. In response, it was pointed out that the notions of "uniqueness" or

"singularity" of transport documents were not unknown to practitioners of

transport law and users of transport documents. It was generally felt, however,

that the notion of "uniqueness" as used in paragraph (3) with respect to data

messages needed to be clarified. Rather than attempting to redraft the text of

paragraph (3), the Commission felt that the matter could be dealt with by

introducing appropriate explanations in the Guide to Enactment. It was generally

felt that such explanations could be based in part on the wording of the above

proposal. After discussion, the Commission adopted the text of paragraph (3) as

presented by the drafting group.

 

204. Subject to the above-mentioned changes, the Commission approved the text of

the draft Model Law presented by the drafting group. The text of the Model Law,

as adopted by the Commission, is reproduced in annex I to the present report.

 

 

 

E. Draft Guide to Enactment of the Model Law

 

205. The Commission engaged in a discussion of the draft Guide to Enactment of

the Model Law prepared by the Secretariat (A/CN.9/426).

 

206. It was generally agreed that the draft Guide adequately reflected the

deliberations and decisions made by the Commission and the Working Group at

various stages of the process that had led to the adoption of the draft Model

Law. The general structure of the draft Guide was found to be acceptable. With a

view to enhancing the readability of the Guide, it was decided that the somewhat

lengthy description of the history and background of the Model Law should be

placed at the end of the document, possibly in an annex. It was also decided

that a short "executive summary" of the Model Law should precede the

introduction to the Model Law in the opening section of the Guide. It was

further decided that the structure and substance of the draft Guide should be

adjusted to reflect the structure of the Model Law as adopted at the current

session. In particular, appropriate remarks should be included with respect to

the newly adopted provisions dealing with declarations of will and other

statements (see paras. 95-99 above), and with transport documents (see paras.

139-172 above).

 

207. As to the substance of the Guide, both the introduction to the Model Law

and the article-by-article remarks prepared by the Secretariat were found to be

generally acceptable, subject to the changes indicated below. The Secretariat

was requested:

 

(a) To mention in the part of the Guide dealing with the scope of application of

the Model Law that, while the Model Law was recommended to be enacted as a

single statute, some States might find it appropriate to incorporate the

provisions of the Model Law in several pieces of legislation, as indicated in

the opening section of the current draft (A/CN.9/426, paras. 24 and 25);

 

(b) To clarify in the Guide that the Commission would monitor the technical and

commercial developments underlying the Model Law and that it might, should it

regard it advisable, decide to add new model provisions to the Model Law or

modify the existing ones;

 

(c) To modify, where necessary, the use of the term "electronic data interchange

(EDI)" in view of the decision to eliminate that term from the title of the

Model Law (see paras. 175-177 above), and bearing in mind the restrictive

meaning given to the term in article 2 of the Model Law;

 

(d) To re-examine the passages where the Guide spoke of "minimal" requirements

established in the Model Law; it was considered that those passages should be

modified so as to avoid the implication that States were invited to establish

requirements stricter than those contained in the Model Law;

 

(e) To clarify in paragraphs 28 and 29 of the draft Guide, which described the

"framework" nature of the Model Law, that the Model Law did not cover every

aspect of the use of electronic commerce, and refrain from recommending that

States adopt "technical regulations" on matters dealt with in the Model Law,

because such regulations might reduce the beneficial flexibility of the

provisions in the Model Law;

 

(f) To explain in paragraph 34 of the draft Guide that article 10 and the notion

of "agreement" therein, which enshrined the principle of party autonomy,

encompassed interchange agreements, general terms provided by communication

networks and specific rules that might be included in those general terms to

deal with bilateral relationships between originators and addressees of data

messages;

 

(g) To revise paragraph 39 and possibly other paragraphs of the draft Guide to

reflect the considerations of the Commission regarding the application of the

Model Law to "paperless" means of communication and to clarify that, except to

the extent expressly provided by the Model Law, the Model Law was not intended

to alter traditional rules on paper-based communications;

 

(h) To emphasize in paragraph 55, and possibly elsewhere, that the purpose of

the Model Law was to facilitate the use of electronic means of communication

without in any way imposing their use;


 

(i) To align paragraph 78 of the draft Guide with the decision taken with

respect to the expression "rule of law" (see paras. 185-187 above).

 

208. After discussion, the Commission requested the Secretariat to prepare a

final version of the Guide to Enactment of the Model Law, reflecting the

deliberations and decisions made at the current session. The Commission mandated

the publication of the final version of the Guide to be prepared by the

Secretariat together with the text of the Model Law, as a single document.

 

 

 

F. Adoption of the Model Law and recommendation

 

209. The Commission, after consideration of the text of the draft Model Law as

revised by the drafting group, 17/ adopted the following decision at its 605th

meeting, on 12 June 1996:

 

"The United Nations Commission on International Trade Law,

 

"Recalling its mandate under General Assembly resolution 2205 (XXI) of 17

December 1966 to further the progressive harmonization and unification of the

law of international trade, and in that respect to bear in mind the interests of

all peoples, and in particular those of developing countries, in the extensive

development of international trade,

 

"Noting that an increasing number of transactions in international trade are

carried out by means of electronic data interchange and other means of

communication commonly referred to as 'electronic commerce', which involve the

use of alternatives to paper-based forms of communication and storage of

information,

 

"Recalling the recommendation on the legal value of computer records adopted by

the Commission at its eighteenth session, in 1985, and paragraph 5 (b) of

General Assembly resolution 40/71 of 11 December 1985 calling upon Governments

and international organizations to take action, where appropriate, in conformity

with the recommendation of the Commission 18/ so as to ensure legal security in

the context of the widest possible use of automated data processing in

international trade,

 

"Being of the opinion that the establishment of a model law facilitating the use

of electronic commerce, and acceptable to States with different legal, social

and economic systems, contributes to the development of harmonious international

economic relations,

 

"Being convinced that the UNCITRAL Model Law on Electronic Commerce will

significantly assist all States in enhancing their legislation governing the use

of alternatives to paper-based forms of communication and storage of

information, and in formulating such legislation where none currently exists,

 

"1. Adopts the UNCITRAL Model Law on Electronic Commerce as it appears in annex

I to the report on the current session;

 

"2. Requests the Secretary-General to transmit the text of the UNCITRAL Model

Law on Electronic Commerce, together with the Guide to Enactment of the Model

Law prepared by the Secretariat, to Governments and other interested bodies;

 

"3. Recommends that all States give favourable consideration to the UNCITRAL

Model Law on Electronic Commerce when they enact or revise their laws, in view

of the need for uniformity of the law applicable to alternatives to paper-based

forms of communication and storage of information."

 

 

 

G. Future work

 

1. Future work on issues of transport law

 

210. It was proposed that the Commission should include in its work programme a

review of current practices and laws in the area of the international carriage

of goods by sea, with a view to establishing the need for uniform rules in the

areas where no such rules existed and with a view to achieving greater

uniformity of laws than has so far been achieved. In making the suggestion,

reference was made to the preliminary discussion that had taken place at the

thirtieth session (1996) of the Working Group on Electronic Data Interchange

about possible future work on issues of transport law other than those

concerning EDI (A/CN.9/421, paras. 104-108). It was said that existing national

laws and international conventions left significant gaps regarding issues such

as the functioning of the bills of lading and seaway bills, the relation of

those transport documents to the rights and obligations between the seller and

the buyer of the goods and to the legal position of the entities that provided

financing to a party to the contract of carriage. Some States had provisions on

those issues, but the fact that those provisions were disparate and that many

States lacked them constituted an obstacle to the free flow of goods and

increased the cost of transactions. The growing use of electronic means of


communication in the carriage of goods further aggravated the consequences of

those fragmentary and disparate laws and also created the need for uniform

provisions addressing the issues particular to the use of new technologies.

 

211. It was suggested that the Secretariat should be requested to solicit views

and suggestions on those difficulties not only from Governments but in

particular from the relevant intergovernmental and non-governmental

organizations representing the various interests in the international carriage

of goods by sea. It was also suggested that obtaining the views of the

commercial sectors involved would be very important. An analysis of those views

and suggestions would enable the Secretariat to present, at a future session, a

report that would allow the Commission to take an informed decision as to the

desirable course of action. It was said that such information-gathering exercise

by the Secretariat should encompass a broad range of issues in the carriage of

goods by sea and in related areas such as terminal operations and multimodal

carriage.

 

212. Several reservations were expressed with regard to the suggestion. One was

that the issues to be covered were numerous and complex, which would strain the

limited resources of the Secretariat. Engaging for that purpose the resources of

the Secretariat and the time of the Commission or a working group would delay

work on other topics that were, or were about to be put, on the agenda of the

Commission. Those topics, it was said, should be given priority relative to the

suggested work on transport law.

 

213. Furthermore, the continued coexistence of different treaties governing the

liability in the carriage of goods by sea and the slow process of adherence to

the United Nations Convention on the Carriage of Goods by Sea, 1978 (Hamburg

Rules) made it unlikely that adding a new treaty to the existing ones would lead

to greater harmony of laws. Indeed, the danger existed that the disharmony of

laws would increase.

 

214. In addition, it was said that any work that would include the

reconsideration of the liability regime was likely to discourage States from

adhering to the Hamburg Rules, which would be an unfortunate result. It was

stressed that, if any investigation was to be carried out, it should not cover

the liability regime, since the Hamburg Rules, elaborated by the United Nations,

had already provided modern solutions. It was, however, stated in reply that the

review of the liability regime was not the main objective of the suggested work;

rather, what was necessary was to provide modern solutions to the issues that

were not or were not adequately dealt with in treaties.

 

215. In view of the differing views, the Commission did not include the

consideration of the suggested issues on its agenda at present. Nevertheless, it

decided that the Secretariat should be the focal point for gathering

information, ideas and opinions as to the problems that arose in practice and

possible solutions to those problems. Such information-gathering should be

broadly based and should include, in addition to Governments, the international

organizations representing the commercial sectors involved in the carriage of

goods by sea, such as the Comitй Maritime International (CMI), the International

Chamber of Commerce (ICC), the International Union of Marine Insurance (IUMI),

the International Federation of Freight Forwarders Associations (FIATA), the

International Chamber of Shipping (ICS) and the International Association of

Ports and Harbors (IAPH). An analysis of such information should be prepared for

a future session of the Commission by the Secretariat when its resources so

permitted without adversely affecting the work on current items of its work

programme. On the basis of that analysis the Commission would be able to decide

on the nature and scope of any future work that might usefully be undertaken by

it.

 

 

 

2. Future work with respect to electronic commerce

 

216. The Commission proceeded with a discussion of future work in the field of

electronic commerce, based on a preliminary debate held by the Working Group at

its thirtieth session (A/CN.9/421, paras. 109-119). It was generally agreed that

UNCITRAL should continue its work on the preparation of legal standards that

could bring predictability to electronic commerce, thereby enhancing trade in

all regions.

 

217. New proposals were made as to possible topics and priorities for future

work. One proposal was that the Commission should start preparing rules on

digital signatures. It was stated that the establishment of digital signature

laws, together with laws recognizing the actions of "certifying authorities", or

other persons authorized to issue electronic certificates or other forms of

assurances as to the origin and attribution of messages "signed" digitally, was

regarded in many countries as essential for the development of electronic

commerce. It was pointed out that the ability to rely on digital signatures

would be a key to the growth of contracting as well as the transferability of

rights to goods or other interests through electronic media. In a number of

jurisdictions, new laws governing digital signatures were currently being

prepared. It was reported that such law development was already non-uniform.

Should the Commission decide to undertake work in that area, it would have an

opportunity to harmonize the new laws, or at least to establish common

principles in the field of electronic signatures, and thus to provide an

international infrastructure for such commercial activity.

 

218. Considerable support was expressed in favour of the proposal. It was

generally felt, however, that, should the Commission decide to undertake work in

the field of digital signatures through its Working Group on Electronic Data


Interchange, it should give the Working Group a precise mandate. It was also

felt that, since it was impossible for UNCITRAL to embark on the preparation of

technical standards, care should be taken that it would not become involved in

the technical issues of digital signatures. It was recalled that the Working

Group, at its thirtieth session, had recognized that work with respect to

certifying authorities might be needed, and that such work would probably need

to be carried out in the context of registries and service providers. However,

the Working Group had also felt that it should not embark on any technical

consideration regarding the appropriateness of using any given standard

(A/CN.9/421, para. 111). A concern was expressed that work on digital signatures

might go beyond the sphere of trade law and also involve general issues of civil

or administrative law. It was stated in response that the same was true of the

provisions of the Model Law and that the Commission should not shy away from

preparing useful rules for the reason that such rules might also be useful

beyond the sphere of commercial relationships.

 

219. Another proposal, based on the preliminary debate held by the Working

Group, was that future work should focus on service providers. The following

were mentioned as possible issues to be considered with respect to service

providers: the minimum standards for performance in the absence of party

agreement; the scope of assumption of risk by the end parties; the effect of

such rules or agreements on third parties; allocation of the risks of

interlopers' or other unauthorized actions; and the extent of mandatory

warranties, if any, or other obligations when providing value-added services

(see A/CN.9/421, para. 116).

 

220. It was widely felt that it would be appropriate for UNCITRAL to examine the

relationship between service providers, users and third parties. It was said

that it would be very important to direct such an effort towards the development

of international norms and standards for commercial conduct in the field, with

the intent of supporting trade through electronic media, and not have as a goal

the establishment of a regulatory regime for service providers, or other rules

which could create costs unacceptable for market applications of EDI (see

A/CN.9/421, para. 117). It was also felt, however, that the subject-matter of

service providers might be too broad and cover too many different factual

situations to be treated as a single work item. It was generally agreed that

issues pertaining to service providers could appropriately be dealt with in the

context of each new area of work addressed by the Working Group.

 

221. Yet another proposal was that the Commission should begin work on the

preparation of the new general rules that were needed to clarify how traditional

contract functions could be performed through electronic commerce. Uncertainties

were said to abound as to what "performance", "delivery" and other terms meant

in the context of electronic commerce, where offers and acceptances and product

delivery could take place on open computer networks across the world. The rapid

growth of computer-based commerce as well as transactions over the Internet and

other systems had made that a priority topic. It was suggested that a study by

the Secretariat could clarify the scope of such work. Should the Commission,

after examination of the study, decide to pursue this task, one option would be

to place such rules in the "Special provisions" section of the Model Law on

Electronic Commerce.

 

222. A further proposal was that the Commission should focus its attention on

the issue of incorporation by reference. It was recalled that the Working Group

had agreed that that topic would appropriately be dealt with in the context of

more general work on the issues of registries and service providers (A/CN.9/421,

para. 114). The Commission was generally agreed that the issue could be dealt

with in the context of work on certification authorities.

 

223. After discussion, the Commission agreed that placing the issue of digital

signatures and certification authorities on the agenda of the Commission was

appropriate, provided that it was used as an opportunity to deal with the other

topics suggested by the Working Group for future work. It was also agreed as to

a more precise mandate for the Working Group that the uniform rules to be

prepared should deal with such issues as: the legal basis supporting

certification processes, including emerging digital authentication and

certification technology; the applicability of the certification process; the

allocation of risk and liabilities of users, providers and third parties in the

context of the use of certification techniques; the specific issues of

certification through the use of registries; and incorporation by reference.

 

224. The Commission requested the Secretariat to prepare a background study of

the issues of digital signatures and service providers, based on an analysis of

laws currently being prepared in various countries. On the basis of that study,

the Working Group should examine the desirability and feasibility of preparing

uniform rules on the above-mentioned topics. It was agreed that work to be

carried out by the Working Group at its thirty-first session could involve the

preparation of draft rules on certain aspects of the above-mentioned topics. The

Working Group was requested to provide the Commission with sufficient elements

for an informed decision to be made as to the scope of the uniform rules to be

prepared. In view of the broad scope of activities covered by the Model Law

adopted at the current session and by possible future work in the area of

electronic commerce, it was decided that the Working Group on Electronic Data

Interchange would be renamed "Working Group on Electronic Commerce".

 

 

 

IV. BUILD-OPERATE-TRANSFER PROJECTS

 

 

 

225. At its twenty-seventh session, in 1994, the Commission, after consideration


of a note prepared by the Secretariat (A/CN.9/399), emphasized the relevance of

build-operate-transfer projects (BOT) and requested the Secretariat to prepare a

note on possible future work on that subject. The requested note (A/CN.9/414)

was considered by the Commission at its twenty-eighth session, in 1995, when

wide support was voiced in the Commission for taking up work in the area of BOT.

19/ The Secretariat was then requested to prepare a report on the issues

proposed for future work with a view to facilitating discussion of the matter at

the Commission's twenty-ninth session in 1996. The Commission also requested

that the Secretariat, in identifying issues proposed for future work, should

take into account the work being undertaken by other organizations in the field

of BOT, in particular the Guidelines that were being prepared by the United

Nations Industrial Development Organization (UNIDO), so as not to duplicate work

carried out by those organizations.

 

226. At its current session, the Commission had before it a report prepared by

the Secretariat pursuant to that request (A/CN.9/424). That report contained

information on work being undertaken by other organizations on BOT, as well as

an outline of issues covered by national laws on BOT and similar arrangements,

followed by proposals for work by the Commission. In the preparation of that

report, the Secretariat had reviewed national legislation on BOT and BOT-related

matters from a number of countries and had summarized the various solutions

found in national laws on the main topics covered by such legislation.

 

227. It was reported that BOT transactions could play a major role in the

economic policy of a State and that, in the experience of a good number of

States, it had been necessary to adopt legislation on such transactions in order

to attract investors for BOT projects. The solutions included in national laws

showed different approaches, as well as different levels of detail and

sophistication. While some States had enacted general legislation on BOT

projects, others had adopted specific legislation on various industrial sectors,

such as power generation, development of maritime terminals or water treatment.

In some cases, laws had been adopted for individual BOT projects. National laws

also provided different solutions to apparently similar or identical issues.

Those solutions were likely to have an impact on the country's ability to

attract foreign investment through BOT projects.

 

228. The Commission took note with appreciation of the report submitted by the

Secretariat and endorsed the proposals for work set out in its paragraphs 85 to

92. It was pointed out that the BOT project-financing mechanism had raised a

considerable amount of interest in many States, in particular in developing

countries. BOT projects usually required considerable amounts of funds and often

involved foreign investors and contractors. The successful implementation of

such projects had often enabled States to achieve significant savings in public

expenditure and to reallocate resources that otherwise would have been invested

in infrastructure in order to meet more pressing social needs. However, BOT and

similar projects required an adequate legal framework that fostered the

confidence of potential investors, national and foreign. Furthermore, such

projects usually involved contractual arrangements of considerable complexity

and might require lengthy negotiations. Work by the Commission in that area

would help such States in tackling the problems that had been identified. In

particular, it was felt that it would be useful to provide legislative guidance

to States preparing or modernizing their legislation relating to BOT projects.

It was noted that organizations that had done work in the area of BOT

transactions were not working to provide comprehensive guidance to national

legislators regarding BOT projects. Given its universal representation and its

record in preparing trade law texts, there was general agreement that UNCITRAL

was the appropriate body to undertake such work, due attention being paid to the

need to avoid possible duplication of work being done by other organizations.

 

229. As regards the form of such guidance, the Commission considered that any

preparatory work should aim at providing legislative guidance by describing

legislative objectives, considering possible statutory solutions for achieving

those objectives and possibly also discussing their advantages and

disadvantages. The Commission thus requested the Secretariat to review, with the

assistance of experts and in cooperation with other international organizations

having the expertise in BOT arrangements, issues on which legislative guidance

might be useful and prepare first draft chapters of a legislative guide for

consideration by the Commission. As for any work on contractual aspects of BOT,

the Commission requested the Secretariat to continue monitoring the work of

other organizations and, should it become desirable for the Commission to

undertake work on contractual aspects of BOT, to formulate appropriate proposals

for such future work.

 

230. Bearing in mind the limited financial resources available to the

Secretariat, the Commission requested that, in the preparation of the

legislative guide, the Secretariat should attempt, to the extent possible, to

draw from expertise of government officials and the private sector in countries

at different levels of economic development, of different economic systems and

of different legal traditions. The Commission further requested States to

cooperate with the Secretariat in its work, in particular by facilitating the

provision of information on pertinent national legislation.

 

V. ASSIGNMENT IN RECEIVABLES FINANCING

 

 

 

231. The Commission, having discussed legal issues in the area of assignment of

claims at its twenty-sixth and twenty-seventh sessions (1993 and 1994), 20/

entrusted, at its twenty-eighth session in 1995, the Working Group on

International Contract Practices with the task of preparing a uniform law on

assignment in receivables financing. 21/

 


232. The Working Group commenced its work at its twenty-fourth session (Vienna,

13-24 November 1995) by considering a number of preliminary draft uniform rules

presented to it in the report submitted by the Secretariat (A/CN.9/412).

 

233. At the current session, the Commission had before it the report of that

session of the Working Group (A/CN.9/420). The Commission noted that, at the

close of that session, the Working Group had requested the Secretariat to

prepare a revised version of the draft uniform rules for the twenty-fifth

session of the Working Group, which was scheduled to take place from 8 to 19

July 1996 in New York (A/CN.9/420, para. 204).

 

234. The Commission expressed appreciation for the work accomplished so far and

requested the Working Group to proceed with the work expeditiously.

 

VI. CROSS-BORDER INSOLVENCY

 

 

 

235. Pursuant to extensive consultations, including with the International

Association of Insolvency Practitioners (INSOL), the Commission considered at

its twenty-eighth session (Vienna, 2-26 May 1995) that it would be worthwhile to

prepare uniform legislative provisions on judicial cooperation in cross-border

insolvencies, on court access for foreign insolvency administrators and on

recognition of foreign insolvency proceedings. 22/ The task of preparing such

uniform provisions was entrusted to the Working Group on Insolvency Law, which

prior to that decision had worked under the title "Working Group on the New

International Economic Order".

 

236. The Working Group commenced the work at its eighteenth session (Vienna, 30

October-10 November 1995) 23/ and continued it at its nineteenth session (New

York, 1-12 April 1996). 24/ On the basis of the considerations of the Working

Group, which resulted in first draft provisions on judicial cooperation and

access and recognition in cross-border insolvency, the Working Group requested

the Secretariat to prepare a revised version of the draft model provisions as

well as a first draft of a guide to enactment of the model provisions

(A/CN.9/422, para. 200). It was noted that, while the Working Group had not yet

adopted a view as to whether the uniform rules should take the form of model

legislation or a convention, it had proceeded under the working assumption that

the text should take the form of model legislation.

 

237. The Commission, which had before it the reports of the two above-mentioned

sessions of the Working Groups (A/CN.9/419 and Corr.1 and A/CN.9/422), was

pleased with the progress of the work. It was noted that the project had aroused

the interest of many practitioners as well as Governments and that the uniform

text that was to result from that work was eagerly awaited. Therefore, the

Commission expressed the hope that the Working Group would proceed with its work

expeditiously so that, after two more sessions of the Working Group scheduled to

take place at Vienna from 7 to 18 October 1996, and in New York from 20 to 31

January 1997, the Working Group would be able to submit a draft legislative text

for consideration by the Commission at its thirtieth session in 1997.

 

VII. LEGISLATIVE IMPLEMENTATION OF THE 1958 NEW YORK CONVENTION

 

 

 

238. The Commission recalled its consideration at its twenty-eighth session in

1995 of the project of collecting information relating to the legislative

implementation in the Contracting States of the Convention on the Recognition

and Enforcement of Foreign Arbitral Awards (New York, 1958). 25/ It was noted

that, in carrying out the preparatory work on the project, the Secretariat had

cooperated with Committee D of the International Bar Association (IBA).

 

239. It was also noted that the project was limited to reviewing the way the

Convention was incorporated into the national laws of the Contracting States,

and, in particular, that it was not its purpose to monitor individual court

decisions applying the Convention. Monitoring such case-law, which was beyond

the resources of the Secretariat, was not necessary for the project;

furthermore, case-law applying the Convention was being collected and published

by other organizations, most notably in the Yearbook of Commercial Arbitrationby

the International Council for Commercial Arbitration (ICCA).

 

240. The primary objective of the project was to publish the findings of the

survey of legislation. Once the Commission had the findings before it, it might

wish to decide whether, in addition to publishing the findings, any further

action by the Commission would be desirable, such as the preparation of a guide

for the implementation of the Convention.

 

241. It was reported that the Secretariat had sent to the States parties to the

Convention a questionnaire designed to obtain information relating to the

implementation of the Convention, so as to be able to prepare a report for

consideration by the Commission. By 12 June 1996, the Secretariat had received

some 32 replies to the questionnaire.

 

242. The Commission welcomed the project. It was said that similar work might at

a later stage also be undertaken with respect to other conventions that had

resulted from the work of the Commission. It was added that such work was useful

in that it fostered uniformity of laws.


 

243. The Commission called upon the States parties to the Convention that had

not yet replied to the questionnaire of the Secretariat to do so. The

Secretariat was requested to prepare, for consideration by the Commission at a

future session, a note presenting the findings based on the analysis of the

information gathered.

 

 

 

VIII. CASE-LAW ON UNCITRAL TEXTS (CLOUT)

 

 

 

244. The Commission noted with appreciation that since its twenty-eighth session

in 1995 two additional sets of abstracts with court decisions and arbitral

awards relating to the United Nations Convention on Contracts for the

International Sale of Goods and the UNCITRAL Model Law on International

Commercial Arbitration had been published (A/CN.9/SER.C/ABSTRACTS/7 and 8).

 

245. The Commission also noted with appreciation that a thesaurus of the United

Nations Convention on Contracts for the International Sale of Goods (i.e., an

analytical list of issues arising in the context of the Convention), which had

been prepared by the Secretariat and finalized by Professor John O. Honnold, had

been published (A/CN.9/SER.C/INDEX/1). The Commission further noted that the

Secretariat was currently preparing a thesaurus for the UNCITRAL Model Law on

International Commercial Arbitration and requested the Secretariat to expedite

the preparation of that thesaurus.

 

246. The Commission expressed its appreciation to the National Correspondents

for their work and urged States to cooperate with the Secretariat in the

operation of CLOUT and to facilitate the carrying out of the tasks of the

National Correspondents. The Commission emphasized the importance of CLOUT for

the purpose of promoting the uniform application of the legal texts that

resulted from its work. The Commission noted that, by being issued in the six

United Nations languages, CLOUT constituted an invaluable tool for

practitioners, academics and government officials. The Commission urged the

States that had not yet appointed a National Correspondent to do so.

 

247. The Secretariat reported on the steps taken to establish and operate a

database, accessible via the Internet, of CLOUT decisions and other documents.

The Commission welcomed those steps and encouraged the Secretariat to pursue

them further. The Commission noted, in that connection, that the work of the

Secretariat in editing abstracts, storing decisions and awards in their original

form, translating abstracts into the other five United Nations languages,

publishing them in the six United Nations languages, forwarding abstracts and

full texts of decisions and awards to interested parties upon request and

establishing and operating a data bank would substantially increase as the

number of decisions and awards covered by CLOUT increased. The Commission

therefore requested that adequate resources be made available to its secretariat

for the effective operation of CLOUT.

 

IX. TRAINING AND TECHNICAL ASSISTANCE

 

 

 

248. The Commission had before it a note by the Secretariat (A/CN.9/427)

outlining the activities that had taken place since the previous session and

indicating the direction of future activities being planned. It was noted that

UNCITRAL seminars and briefing missions for government officials were designed

to explain the salient features and utility of international trade law

instruments of UNCITRAL.

 

249. It was reported that since the previous session the following seminars and

briefing missions had taken place: Minsk (29-30 May 1995); Tehran (9-12

September 1995); Almaty (22-26 August 1995); Bogota (10 November 1995); Asunciуn

(22-24 November 1995); Santiago (27-29 November 1995); Conakry (15-19 January

1996); Libreville (22-25 January 1996); Abu Dhabi (27 June 1995); Dubai (4 July

1995); Auckland and Wellington, New Zealand (5 and 14 July 1995); Athens (18-19

October 1995); Ankara (4-7 December 1995); Ljubljana (31 January 1996). The

Secretariat reported that for the remainder of 1996 and up to the next session

of the Commission in May 1997, seminars and briefing missions were being planned

in Africa, Asia and Latin America.

 

250. The Commission expressed its appreciation to the Secretariat for the

activities undertaken since its last session and emphasized the importance of

the training and technical assistance programme for promoting awareness of its

work and disseminating information on the legal texts it had produced. It was

pointed out that seminars and briefing missions were particularly useful for

developing countries lacking expertise in the areas of trade and commercial law

covered by the work of UNCITRAL. The Commission noted the relevance of uniform

commercial law, in particular legal texts prepared by UNCITRAL, in the economic

integration efforts being undertaken by many countries and emphasized the

important role that the training and technical assistance activities of the

Secretariat might play in that context. As for the topics covered in UNCITRAL

seminars, the Secretariat was encouraged to include, whenever appropriate,

information on texts relevant to international trade prepared by other

organizations.

 

251. The Commission noted the various forms of technical assistance that might

be provided by the Secretariat, such as review of preparatory drafts of


legislation, assistance in the preparation of drafts, comments on reports of law

reform commissions and briefings for legislators, judges, arbitrators and other

end-users of UNCITRAL legal texts embodied in national legislation. The

Commission encouraged the Secretariat to devise ways to address the continuing

and significant increase in the importance being attributed by Governments, by

domestic and international business communities and by multilateral and

bilateral aid agencies to improvement of the legal framework for international

trade and investment.

 

252. The Commission emphasized the importance of cooperation and coordination

between development assistance agencies providing or financing legal technical

assistance with the Secretariat, with a view to avoiding situations in which

international assistance might lead to the adoption of national laws that do not

represent internationally agreed standards, including UNCITRAL conventions and

model laws.

 

253. The Commission took note with appreciation of the contributions for the

seminar programme that had been made by Cambodia, France, the Philippines and

Switzerland. The Commission also expressed its appreciation to those other

States and organizations that had contributed to the Commission's programme of

training and assistance by providing funds or staff, or by hosting seminars.

Stressing the importance of extrabudgetary funding for carrying out training and

technical assistance activities, the Commission appealed once more to all

States, international organizations and other interested entities to consider

making contributions to the UNCITRAL Trust Fund for Symposia, particularly in

the form of multi-year contributions, so as to facilitate planning and enable

the Secretariat to meet the increasing demands in developing countries and newly

independent States for training and assistance.

 

254. The Commission noted that the General Assembly had not had the opportunity,

during its fiftieth session, to consider the request that had been made by the

Commission at its last session that the UNCITRAL Trust Fund for Symposia be

placed on the agenda of the pledging conference taking place within the

framework of the Assembly session, on the understanding that that would not have

any effect on the obligation of a State to pay its assessed contribution to the

Organization. 26/ The Commission therefore requested that the Sixth Committee

recommend to the Assembly the adoption of a resolution including the UNCITRAL

Trust Fund for Symposia and the Trust Fund for Granting Travel Assistance to

Developing States Members of UNCITRAL on the agenda of the United Nations

Pledging Conference for Development Activities.

 

X. STATUS AND PROMOTION OF UNCITRAL LEGAL TEXTS

 

 

 

255. The Commission, on the basis of a note by the Secretariat (A/CN.9/428),

considered the status of the conventions and model laws emanating from its work,

as well as the status of the Convention on the Recognition and Enforcement of

Foreign Arbitral Awards (New York, 1958). The Commission noted with pleasure the

new actions of States after 26 May 1995 (date of the conclusion of the

twenty-eighth session of the Commission) regarding the following instruments:

 

(a) Convention on the Limitation Period in the International Sale of Goods (New

York, 1974). New actions: ratification by Poland and adherence, by virtue of

accession to the Protocol amending the Limitation Period Convention, by

Slovenia; number of States parties: 20;

 

(b) Protocol amending the Limitation Period Convention (Vienna, 1980). New

actions: accession by Poland and Slovenia;

 

(c) United Nations Convention on the Carriage of Goods by Sea, 1978 (Hamburg

Rules). New actions: ratification by the Czech Republic; accession by Gambia and

Georgia; number of States parties: 25;

 

(d) United Nations Convention on Contracts for the International Sale of Goods

(Vienna, 1980). New action: ratification by Poland; number of States parties:

45;

 

(e) United Nations Convention on International Bills of Exchange and

International Promissory Notes (New York, 1988). The Convention had two States

parties. It required eight more adherences for entry into force;

 

(f) United Nations Convention on the Liability of Operators of Transport

Terminals in International Trade (Vienna, 1991). The Convention had been signed

by five States; new action: accession by Georgia; one State party; five

adherences to the Convention were necessary for the Convention to enter into

force;

 

(g) UNCITRAL Model Law on International Commercial Arbitration, 1985. New

jurisdictions that had enacted legislation based on the Model Law: Guatemala,

India, Kenya, Malta, Sri Lanka; total number of the jurisdictions with such

legislation: 39;

 

(h) UNCITRAL Model Law on Procurement of Goods, Construction and Services,1994.

Jurisdictions that had enacted legislation based on the Model Law: Albania and

Poland;


 

(i) Convention on the Recognition and Enforcement of Foreign Arbitral Awards

(New York, 1958). New actions: accession by Kazakstan, Uzbekistan and Viet Nam;

total number of States parties: 108.

 

256. Appreciation was expressed for those legislative actions on the texts of

the Commission.

 

257. It was noted that, despite the universal relevance and usefulness of those

texts, a great number of States had not yet enacted any of them. In view of the

broad support for the legislative texts emanating from the work of the

Commission among practitioners and academics in countries with different legal,

social and economic systems, the pace of adoption of those texts was slower than

it needed to be. An appeal was directed to the delegates and observers

participating in the meetings of the Commission and its working groups to engage

themselves, to the extent they in their discretion deemed appropriate, in

facilitating consideration by legislative organs in their countries of texts of

the Commission.

XI. GENERAL ASSEMBLY RESOLUTIONS ON THE WORK OF THE COMMISSION

 

 

 

258. The Commission took note with appreciation of General Assembly resolution

50/48 of 11 December 1995, in which the Assembly adopted and opened for

signature or accession the United Nations Convention on Independent Guarantees

and Stand-by Letters of Credit and in which the Assembly also expressed its

appreciation to the Commission for having prepared the draft of that Convention.

In paragraph 3 of the resolution, the General Assembly called upon all

Governments to consider becoming party to the Convention.

 

259. The Commission took note with appreciation of General Assembly resolution

50/47, also of 11 December 1995, on the report of the Commission on its

twenty-eighth session, held in 1995. In particular, it was noted that, in

paragraph 5, the Assembly reaffirmed the mandate of the Commission, as the core

legal body within the United Nations system in the field of international trade

law, to coordinate legal activities in that field in order to avoid duplication

of effort and to promote efficiency, consistency and coherence in the

unification and harmonization of international trade law, and in that connection

recommended that the Commission, through its secretariat, should continue to

maintain close cooperation with the other international organs and

organizations, including regional organizations, active in the field of

international trade law.

 

260. The Commission further noted with appreciation the decision of the General

Assembly, in paragraph 6, to reaffirm the importance, in particular for

developing countries, of the work of the Commission concerned with training and

technical assistance in the field of international trade law, such as assistance

in the preparation of national legislation based on legal texts of the

Commission, and that, in paragraph 7, the Assembly expressed the desirability

for increased efforts by the Commission in sponsoring seminars and symposia to

provide such training and assistance.

 

261. The Commission also noted with appreciation the appeal, in paragraph 7 (b),

to Governments, the relevant United Nations organs, organizations and

institutions and individuals to make voluntary contributions to the UNCITRAL

Trust Fund for Symposia and, where appropriate, to the financing of special

projects. Furthermore, it was noted that the Assembly appealed, in paragraph 7

(c), to the United Nations Development Programme and other bodies responsible

for development assistance, as well as to Governments in their bilateral aid

programmes, to support the training and technical assistance programme of the

Commission and to cooperate and coordinate their activities with those of the

Commission.

 

262. It was also appreciated that the Assembly appealed, in paragraph 8, to

Governments, the relevant United Nations organs, organizations and institutions

and individuals, in order to ensure full participation by all Member States in

the sessions of the Commission and its working groups, to make voluntary

contributions to the Trust Fund for travel assistance to developing countries

that were members of the Commission, at their request and in consultation with

the Secretary-General. That Trust Fund was established pursuant to Assembly

resolution 48/32 of 9 December 1993. The Commission further noted with

appreciation the decision of the General Assembly, in paragraph 9, to continue

its consideration in the competent Main Committee during the fiftieth session of

the Assembly of granting travel assistance, within existing resources, to the

least developed countries that were members of the Commission, at their request

and in consultation with the Secretary-General.

 

263. The Commission welcomed the request, in paragraph 10, by the General

Assembly to the Secretary-General to ensure that adequate resources were

allocated for the effective implementation of the programmes of the Commission.

The Commission in particular hoped that the Secretariat would be allocated

sufficient resources to meet the increased demands for training and assistance.

 

264. The Commission also noted with appreciation that the General Assembly, in

paragraph 11, stressed the importance of bringing into effect the conventions

emanating from the work of the Commission and that, to that end, it urged States

that had not yet done so to consider signing, ratifying or acceding to those

conventions.

 

XII. OTHER BUSINESS


 

 

 

A. Reduction of documentation requirements

 

265. The Commission took note of General Assembly resolution 50/206 C of 23

December 1995 and considered the requests and suggestions contained in

paragraphs 6 to 8 to exercise restraint in making proposals containing requests

for new reports, to consider the possibility of biennializing or triennializing

the presentation of reports, to review the necessity of all recurrent documents

and to consider the possibility of oral reports as well as consolidated reports

on related topics. While recognizing the need for achieving further savings in

the field of documentation, the Commission concluded that, beyond the restraint

it had been exercising for some time already, no additional measures of the kind

suggested could be taken without adversely affecting the fulfilment of its

mandate.

 

 

 

B. Principles of interpretation

 

266. Reference was made to provisions on principles of interpretation included

in conventions prepared in recent years, for example, in article 7 (1) of the

United Nations Convention on Contracts for the International Sale of Goods. Such

provisions contained a similar wording to the effect that, in the interpretation

of the convention, regard was to be had to its international character, the need

to promote uniformity in its application and the need to promote the observance

of good faith in international trade. A suggestion was made that, when similar

provisions were to be drafted for new conventions, consideration should be given

to including reference also to the observance of principles of international

trade law and legal texts elaborated by recognized international organizations,

as well as customs and practices in the area covered by the convention in

question. The suggestion was not discussed at the current session.

 

 

 

C. UNCITRAL Yearbook

 

267. The Commission reiterated the usefulness of the Yearbook of the United

Nations Commission on International Trade Law, in which the travaux

prйparatoires for the texts elaborated by the Commission were compiled. It was

stressed that it was essential for many users of its texts (e.g., legislators,

attorneys, academics, judges or arbitrators) to have access to those travaux

prйparatoires, and that the Yearbook was for many of them the only practical

source of such information. The Commission requested the Secretariat to continue

editing the Yearbook in the English, French, Russian and Spanish languages, and,

in view of the broad and keen interest in the texts being prepared by the

Commission, to publish the volumes of the Yearbook soon after the conclusion of

the annual sessions of the Commission.

 

 

 

D. Cooperation with the Organization of American States

 

268. The Commission was informed, by a statement on behalf of the Organization

of American States (OAS), of the preparatives for the Sixth Inter-American

Specialized Conference on Private International Law ("CIDIP-VI"), the agenda of

which might include matters that are of direct concern to the Commission (e.g.,

international bankruptcy). The Commission was appreciative of the wish of OAS to

strengthen the cooperation between the two organizations in areas of common

interest.

 

 

 

E. Bibliography

 

269. The Commission noted that the Secretariat had been unable to publish the

bibliography of recent writings related to the work of the Commission

(A/CN.9/429) in time to make it available at the current session, but that the

publication would be printed and distributed soon thereafter.

 

270. The Commission stressed that it was important for it to have as complete as

possible information about publications, including academic theses, commenting

on results of its work. It therefore requested Governments, academic

institutions and other relevant organizations to send copies of such

publications to the Secretariat.

 

 

 

F. Willem C. Vis International Commercial Arbitration Moot

 

271. It was reported to the Commission that the Institute of International

Commercial Law at the Pace University School of Law, New York, had organized the

third Willem C. Vis International Commercial Arbitration Moot (Vienna, 27-31

March 1996). Legal issues that the teams of students participating in the Moot

dealt with were based on the United Nations Convention on Contracts for the

International Sale of Goods and the UNCITRAL Model Law on International

Commercial Arbitration. In the 1996 Moot, 38 teams participated from law schools


from 19 countries. The fourth Moot would be held in April 1997 at Vienna.

 

272. The Commission heard the report with interest and appreciation. It regarded

the Moot, with its international participation, as an excellent method of

teaching international trade law and disseminating information about current

uniform texts.

 

 

 

G. Six hundredth meeting of the Commission

 

273. The Commission noted that the afternoon meeting on 7 June 1996 was its

600th meeting, and that occasion was used to point out with pride and

satisfaction the remarkable achievements of the Commission since its first

session in 1968. Confidence was expressed that the Commission would continue to

play a central role in the progressive harmonization of international trade law.

 

 

 

 

H. Date and place of the thirtieth session of the Commission

 

274. It was decided that the Commission would hold its thirtieth session from 12

to 30 May 1997 at Vienna.

 

 

 

I. Sessions of working groups

 

275. The Commission approved the following schedule of meetings for its working

groups:

 

(a) The Working Group on International Contract Practices would hold its

twenty-fifth session from 8 to 19 July 1996 in New York, and its twenty-sixth

session from 11 to 22 November 1996 at Vienna;

 

(b) The Working Group on Insolvency Law would hold its twentieth session from 7

to 18 October 1996 at Vienna, and its twenty-first session from 20 to 31 January

1997 in New York;

 

(c) The Working Group on Electronic Commerce would hold its thirty-first session

from 18 to 28 February 1997 in New York.

 

 

 

Notes

 

1/ Pursuant to General Assembly resolution 2205 (XXI), the members of the

Commission are elected for a term of six years. Of the current membership, 19

were elected by the General Assembly at its forty-sixth session on 4 November

1991 (decision 46/309) and 17 were elected by the Assembly at its forty-ninth

session on 28 November 1994 (decision 49/315). Pursuant to resolution 31/99 of

15 December 1976, the term of those members elected by the Assembly at its

forty-sixth session will expire on the last day prior to the opening of the

thirty-first session of the Commission, in 1998, while the term of those members

elected at the forty-ninth session will expire on the last day prior to the

opening of the thirty-fourth session of the Commission, in 2001.

 

2/ The election of the Chairman took place at the 583rd meeting, on 28 May 1996,

the election of the Vice-Chairmen at the 596th and 598th meetings, on 5 and 6

June 1996; the election of the Rapporteur took place at the 593rd meeting, on 4

June 1996. In accordance with a decision taken by the Commission at its first

session, the Commission has three Vice-Chairmen, so that, together with the

Chairman and the Rapporteur, each of the five groups of States listed in General

Assembly resolution 2205 (XXI), section II, paragraph 1, will be represented on

the bureau of the Commission (see the report of the United Nations Commission on

International Trade Law on the work of its first session, Official Records of

the General Assembly, Twenty-third Session, Supplement No. 16 (A/7216), para. 14

(Yearbook of the United Nations Commission on International Trade Law, vol. I:

1968-1970, United Nations publication, Sales No. E.71.V.1, part two, I, A)).

 

3/ Official Records of the General Assembly, Forty-eighth Session, Supplement

No. 17 (A/48/17), paras. 291-296.

 

4/ Ibid., Forty-ninth Session, Supplement No. 17 (A/49/17), paras. 111-195.

 

5/ The proceedings of the Congress are published in Planning Efficient

Arbitration Proceedings/The Law Applicable in International Arbitration, ICCA

Congress Series No. 7, Kluwer Law International, The Hague, 1996.

 

6/ Official Records of the General Assembly, Fiftieth Session, Supplement No. 17

(A/50/17), paras. 314-373.


 

7/ Ibid., Forty-seventh Session, Supplement No. 17 (A/47/17), paras. 140-148.

 

8/ Ibid., Fiftieth Session, Supplement No. 17 (A/50/17), para. 307.

 

9/ Ibid., Forty-ninth Session, Supplement No. 17 (A/49/17), para. 201.

 

10/ Ibid., Fiftieth Session, Supplement No. 17 (A/50/17), para. 309.

 

11/ Ibid., para. 212.

 

12/ Ibid., para. 211.

 

13/ Ibid., para. 236.

 

14/ See the report of the Commission on the work of its eighteenth session,

Official Records of the General Assembly, Fortieth Session, Supplement No. 17

(A/40/17), paras. 232 and 233 (Yearbook of the United Nations Commission on

International Trade Law, vol. XVI: 1985, part one); see also the summary records

of the 326th meeting of that session, para. 34, and the summary records of the

327th meeting, para. 38 (Yearbook of the United Nations Commission on

International Trade Law, vol. XVI: 1985, part three).

 

15/ Official Records of the General Assembly, Fiftieth Session, Supplement No.

17 (A/50/17), para. 274.

 

16/ Ibid., paras. 282 and 283.

 

17/ The following table indicates new article numbers assigned to the provisions

of the UNCITRAL Model Law on Electronic Commerce upon adoption by the Commission

and the articles as they were presented in the draft Model Law on Legal Aspects

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

the Commission.

Number of article in Model LawNumber of draft article before the

CommissionNumber of article in Model LawNumber of draft article before the

Commission

111113

2212new 13 bis

331311

41014 (1) to (4)12 (1) to (4)

5414 (5) and (6)12 (5)

6 (1) and (2)5 (1)14 (7)new

6 (3)5 (2)1514

7 (1) and (2)6 (1)16X (1)

7 (3)6 (2)17 (1) and (2)X (2)

8 (1) and (2)7 (1)17 (3)X (4)

8 (3)7 (2)17 (4)X (5)

8 (4)7 (3)17 (5)X (3)

9817 (6)X (6)

10917 (7)X (7)

 

 

 

 

 

 

 

18/ Official Records of the General Assembly, Fortieth Session, Supplement No.

17 (A/40/17), chap. VI, sect. B.

 

19/ Ibid., Fiftieth Session, Supplement No. 17 (A/50/17), paras. 394-400.

 

20/ Ibid., Forty-eighth Session, Supplement No. 17 (A/48/17), paras. 297-301 and

ibid., Forty-ninth Session, Supplement No. 17 (A/49/17), paras. 208-214.

 

21/ Ibid., Fiftieth Session, Supplement No. 17 (A/50/17), paras. 374-381.

 

22/ Ibid., paras. 382-393.

 

23/ The report of the eighteenth session of the Working Group is found in

document A/CN.9/419 and Corr.1.

 

24/ The report of the nineteenth session of the Working Group is found in

document A/CN.9/422.

 

25/ Official Records of the General Assembly, Fiftieth Session, Supplement No.

17 (A/50/17), paras. 401-404.

 

26/ Ibid., para. 422.

 


ANNEX I

 

[Original: Arabic, Chinese,

English, French,

Russian, Spanish]

 

UNCITRAL Model Law on Electronic Commerce

 

 

 

PART ONE. ELECTRONIC COMMERCE IN GENERAL

 

CHAPTER I. GENERAL PROVISIONS

 

Article 1. Sphere of application(1)

 

This Law(2) applies to any kind of information in the form of a data message

used in the context(3) of commercial(4) activities.

 

 

 

Article 2. Definitions

 

For the purposes of this Law:

 

(a) "Data message" means information generated, sent, received or stored by

electronic, optical or similar means including, but not limited to, electronic

data interchange (EDI), electronic mail, telegram, telex or telecopy;

 

(b) "Electronic data interchange (EDI)" means the electronic transfer from

computer to computer of information using an agreed standard to structure the

information;

 

(c) "Originator" of a data message means a person by whom, or on whose behalf,

the data message purports to have been sent or generated prior to storage, if

any, but it does not include a person acting as an intermediary with respect to

that data message;

 

(d) "Addressee" of a data message means a person who is intended by the

originator to receive the data message, but does not include a person acting as

an intermediary with respect to that data message;

 

(e) "Intermediary", with respect to a particular data message, means a person

who, on behalf of another person, sends, receives or stores that data message or

provides other services with respect to that data message;

 

(f) "Information system" means a system for generating, sending, receiving,

storing or otherwise processing data messages.

 

 

 

Article 3. Interpretation

 

(1) In the interpretation of this Law, regard is to be had to its international

origin and to the need to promote uniformity in its application and the

observance of good faith.

 

(2) Questions concerning matters governed by this Law which are not expressly

settled in it are to be settled in conformity with the general principles on

which this Law is based.

 

 

 

Article 4. Variation by agreement

 

(1) As between parties involved in generating, sending, receiving, storing or

otherwise processing data messages, and except as otherwise provided, the

provisions of chapter III may be varied by agreement.

 

(2) Paragraph (1) does not affect any right that may exist to modify by

agreement any rule of law referred to in chapter II.

 

 

 

CHAPTER II. APPLICATION OF LEGAL REQUIREMENTS TO DATA MESSAGES

 

Article 5. Legal recognition of data messages


 

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

on the grounds that it is in the form of a data message.

 

 

 

Article 6. Writing

 

(1) Where the law requires information to be in writing, that requirement is met

by a data message if the information contained therein is accessible so as to be

usable for subsequent reference.

 

(2) Paragraph (1) applies whether the requirement therein is in the form of an

obligation or whether the law simply provides consequences for the information

not being in writing.

 

(3) The provisions of this article do not apply to the following: [...].

Article 7. Signature

 

(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.

 

(3) The provisions of this article do not apply to the following: [...].

 

 

 

Article 8. Original

 

(1) Where the law requires information to be presented or retained in its

original form, that requirement is met by a data message if:

 

(a) there exists a reliable assurance as to the integrity of the information

from the time when it was first generated in its final form, as a data message

or otherwise; and

 

(b) where it is required that information be presented, that information is

capable of being displayed to the person to whom it is to be presented.

 

(2) Paragraph (1) applies whether the requirement therein is in the form of an

obligation or whether the law simply provides consequences for the information

not being presented or retained in its original form.

 

(3) For the purposes of subparagraph (a) of paragraph (1):

 

(a) the criteria for assessing integrity shall be whether the information has

remained complete and unaltered, apart from the addition of any endorsement and

any change which arises in the normal course of communication, storage and

display; and

 

(b) the standard of reliability required shall be assessed in the light of the

purpose for which the information was generated and in the light of all the

relevant circumstances.

 

(4) The provisions of this article do not apply to the following: [...].

 

 

 

Article 9. Admissibility and evidential weight of data messages

 

(1) In any legal proceedings, nothing in the application of the rules of

evidence shall apply so as to deny the admissibility of a data message in

evidence:

 

(a) on the sole ground that it is a data message; or

 

(b) if it is the best evidence that the person adducing it could reasonably be

expected to obtain, on the grounds that it is not in its original form.


 

(2) Information in the form of a data message shall be given due evidential

weight. In assessing the evidential weight of a data message, regard shall be

had to the reliability of the manner in which the data message was generated,

stored or communicated, to the reliability of the manner in which the integrity

of the information was maintained, to the manner in which its originator was

identified, and to any other relevant factor.

 

 

 

Article 10. Retention of data messages

 

(1) Where the law requires that certain documents, records or information be

retained, that requirement is met by retaining data messages, provided that the

following conditions are satisfied:

 

(a) the information contained therein is accessible so as to be usable for

subsequent reference; and

 

(b) the data message is retained in the format in which it was generated, sent

or received, or in a format which can be demonstrated to represent accurately

the information generated, sent or received; and

 

(c) such information, if any, is retained as enables the identification of the

origin and destination of a data message and the date and time when it was sent

or received.

 

(2) An obligation to retain documents, records or information in accordance with

paragraph (1) does not extend to any information the sole purpose of which is to

enable the message to be sent or received.

 

(3) A person may satisfy the requirement referred to in paragraph (1) by using

the services of any other person, provided that the conditions set forth in

subparagraphs (a), (b) and (c) of paragraph (1) are met.

 

 

 

CHAPTER III. COMMUNICATION OF DATA MESSAGES

 

Article 11. Formation and validity of contracts

 

(1) In the context of contract formation, unless otherwise agreed by the

parties, an offer and the acceptance of an offer may be expressed by means of

data messages. Where a data message is used in the formation of a contract, that

contract shall not be denied validity or enforceability on the sole ground that

a data message was used for that purpose.

 

(2) The provisions of this article do not apply to the following: [...].

 

 

 

Article 12. Recognition by parties of data messages

 

(1) As between the originator and the addressee of a data message, a declaration

of will or other statement shall not be denied legal effect, validity or

enforceability solely on the grounds that it is in the form of a data message.

 

(2) The provisions of this article do not apply to the following: [...].

 

 

 

Article 13. Attribution of data messages

 

(1) A data message is that of the originator if it was sent by the originator

itself.

 

(2) As between the originator and the addressee, a data message is deemed to be

that of the originator if it was sent:

 

(a) by a person who had the authority to act on behalf of the originator in

respect of that data message; or

 

(b) by an information system programmed by or on behalf of the originator to

operate automatically.

 

(3) As between the originator and the addressee, an addressee is entitled to

regard a data message as being that of the originator, and to act on that

assumption, if:

 


(a) in order to ascertain whether the data message was that of the originator,

the addressee properly applied a procedure previously agreed to by the

originator for that purpose; or

 

(b) the data message as received by the addressee resulted from the actions of a

person whose relationship with the originator or with any agent of the

originator enabled that person to gain access to a method used by the originator

to identify data messages as its own.

 

(4) Paragraph (3) does not apply:

 

(a) as of the time when the addressee has both received notice from the

originator that the data message is not that of the originator, and had

reasonable time to act accordingly; or

 

(b) in a case within paragraph (3) (b), at any time when the addressee knew or

should have known, had it exercised reasonable care or used any agreed

procedure, that the data message was not that of the originator.

 

(5) Where a data message is that of the originator or is deemed to be that of

the originator, or the addressee is entitled to act on that assumption, then, as

between the originator and the addressee, the addressee is entitled to regard

the data message as received as being what the originator intended to send, and

to act on that assumption. The addressee is not so entitled when it knew or

should have known, had it exercised reasonable care or used any agreed

procedure, that the transmission resulted in any error in the data message as

received.

 

(6) The addressee is entitled to regard each data message received as a separate

data message and to act on that assumption, except to the extent that it

duplicates another data message and the addressee knew or should have known, had

it exercised reasonable care or used any agreed procedure, that the data message

was a duplicate.

 

 

 

Article 14. Acknowledgement of receipt

 

(1) Paragraphs (2) to (4) of this article apply where, on or before sending a

data message, or by means of that data message, the originator has requested or

has agreed with the addressee that receipt of the data message be acknowledged.

 

(2) Where the originator has not agreed with the addressee that the

acknowledgement be given in a particular form or by a particular method, an

acknowledgement may be given by:

 

(a) any communication by the addressee, automated or otherwise, or

 

(b) any conduct of the addressee,

 

sufficient to indicate to the originator that the data message has been

received.

 

(3) Where the originator has stated that the data message is conditional on

receipt of the acknowledgement, the data message is treated as though it has

never been sent, until the acknowledgement is received.

 

(4) Where the originator has not stated that the data message is conditional on

receipt of the acknowledgement, and the acknowledgement has not been received by

the originator within the time specified or agreed or, if no time has been

specified or agreed, within a reasonable time the originator:

 

(a) may give notice to the addressee stating that no acknowledgement has been

received and specifying a reasonable time by which the acknowledgement must be

received; and

 

(b) if the acknowledgement is not received within the time specified in

subparagraph (a), may, upon notice to the addressee, treat the data message as

though it had never been sent, or exercise any other rights it may have.

 

(5) Where the originator receives the addressee's acknowledgement of receipt, it

is presumed that the related data message was received by the addressee. That

presumption does not imply that the data message corresponds to the message

received.

 

(6) Where the received acknowledgement states that the related data message met

technical requirements, either agreed upon or set forth in applicable standards,

it is presumed that those requirements have been met.

 

(7) Except in so far as it relates to the sending or receipt of the data

message, this article is not intended to deal with the legal consequences that


may flow either from that data message or from the acknowledgement of its

receipt.

 

 

 

Article 15. Time and place of dispatch and receipt of

data messages

 

(1) Unless otherwise agreed between the originator and the addressee, the

dispatch of a data message occurs when it enters an information system outside

the control of the originator or of the person who sent the data message on

behalf of the originator.

 

(2) Unless otherwise agreed between the originator and the addressee, the time

of receipt of a data message is determined as follows:

 

(a) if the addressee has designated an information system for the purpose of

receiving data messages, receipt occurs:

 

(i) at the time when the data message enters the designated information system;

or

 

(ii) if the data message is sent to an information system of the addressee that

is not the designated information system, at the time when the data message is

retrieved by the addressee;

 

(b) if the addressee has not designated an information system, receipt occurs

when the data message enters an information system of the addressee.

 

(3) Paragraph (2) applies notwithstanding that the place where the information

system is located may be different from the place where the data message is

deemed to be received under paragraph (4).

 

(4) Unless otherwise agreed between the originator and the addressee, a data

message is deemed to be dispatched at the place where the originator has its

place of business, and is deemed to be received at the place where the addressee

has its place of business. For the purposes of this paragraph:

 

(a) if the originator or the addressee has more than one place of business, the

place of business is that which has the closest relationship to the underlying

transaction or, where there is no underlying transaction, the principal place of

business;

 

(b) if the originator or the addressee does not have a place of business,

reference is to be made to its habitual residence.

 

(5) The provisions of this article do not apply to the following: [...].

 

 

 

PART TWO. ELECTRONIC COMMERCE IN SPECIFIC AREAS

 

CHAPTER I. CARRIAGE OF GOODS

 

Article 16. Actions related to contracts of carriage of goods

 

Without derogating from the provisions of part I of this Law, this chapter

applies to any action in connection with, or in pursuance of, a contract of

carriage of goods, including but not limited to:

 

(a) (i) furnishing the marks, number, quantity or weight of goods;

 

(ii) stating or declaring the nature or value of goods;

 

(iii) issuing a receipt for goods;

 

(iv) confirming that goods have been loaded;

 

(b) (i) notifying a person of terms and conditions of the contract;

 

(ii) giving instructions to a carrier;

 

(c) (i) claiming delivery of goods;

 

(ii) authorizing release of goods;


 

(iii) giving notice of loss of, or damage to, goods;

 

(d) giving any other notice or statement in connection with the performance of

the contract;

 

(e) undertaking to deliver goods to a named person or a person authorized to

claim delivery;

 

(f) granting, acquiring, renouncing, surrendering, transferring or negotiating

rights in goods;

 

(g) acquiring or transferring rights and obligations under the contract.

 

 

 

Article 17. Transport documents

 

(1) Subject to paragraph (3), where the law requires that any action referred to

in article 16 be carried out in writing or by using a paper document, that

requirement is met if the action is carried out by using one or more data

messages.

 

(2) Paragraph (1) applies whether the requirement therein is in the form of an

obligation or whether the law simply provides consequences for failing either to

carry out the action in writing or to use a paper document.

 

(3) If a right is to be granted to, or an obligation is to be acquired by, one

person and no other person, and if the law requires that, in order to effect

this, the right or obligation must be conveyed to that person by the transfer,

or use of, a paper document, that requirement is met if the right or obligation

is conveyed by using one or more data messages, provided that a reliable method

is used to render such data message or messages unique.

 

(4) For the purposes of paragraph (3), the standard of reliability required

shall be assessed in the light of the purpose for which the right or obligation

was conveyed and in the light of all the circumstances, including any relevant

agreement.

 

(5) Where one or more data messages are used to effect any action in

subparagraphs (f) and (g) of article 16, no paper document used to effect any

such action is valid unless the use of data messages has been terminated and

replaced by the use of paper documents. A paper document issued in these

circumstances shall contain a statement of such termination. The replacement of

data messages by paper documents shall not affect the rights or obligations of

the parties involved.

 

(6) If a rule of law is compulsorily applicable to a contract of carriage of

goods which is in, or is evidenced by, a paper document, that rule shall not be

inapplicable to such a contract of carriage of goods which is evidenced by one

or more data messages by reason of the fact that the contract is evidenced by

such data message or messages instead of by a paper document.

 

(7) The provisions of this article do not apply to the following: [...].

 

ANNEX II

 

List of documents before the Commission at its

twenty-ninth session

 

 

 

A. General series

 

A/CN.9/418 Provisional agenda, annotations thereto and scheduling of meetings of

the twenty-ninth session

 

A/CN.9/419 Report of the Working Group on Insolvency Law on the and Corr.1

(English only) work of its eighteenth session

 

A/CN.9/420 Report of the Working Group on International Contract Practices on

the work of its twenty-fourth session

 

A/CN.9/421 Report of the Working Group on Electronic Data Interchange (EDI) on

the work of its thirtieth session

 

A/CN.9/422 Report of the Working Group on Insolvency Law on the work of its

nineteenth session

A/CN.9/423 International commercial arbitration: draft Notes on Organizing

Arbitral Proceedings


 

A/CN.9/424 Possible future work: Build-Operate-Transfer projects

 

A/CN.9/425 International commercial arbitration: Monitoring the legislative

implementation of the 1958 New York

Convention: progress report

 

A/CN.9/426 Electronic data interchange: Guide to Enactment of the UNCITRAL Model

Law on Legal Aspects of Electronic Data Interchange (EDI) and Related Means of

Communication

 

A/CN.9/427 Training and Technical Assistance

 

A/CN.9/428 Status of Conventions

 

A/CN.9/429 Bibliography of recent writings related to the work of UNCITRAL

 

 

 

B. Restricted series

 

A/CN.9/XXIX/CRP.1 Draft report of the United Nations Commission on

and Add.1-21 International Trade Law on the work of its twenty-ninth session

 

A/CN.9/XXIX/CRP.2 Report of the Drafting Group

and Add.1-5

 

A/CN.9/XXIX/CRP.3 Proposed amendments to paragraph (3) of draft article x

 

 

 

C. Information series

 

A/CN.9/XXIX/INF.1 List of participants

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

96-20641 (E) 130996-89-

*9620641*

1. * The Commission suggests the following text for States that might wish to

limit the applicability of this Law to international data messages:

 

"This Law applies to a data message as defined in paragraph (1) of article 2

where the data message relates to international commerce."

2. ** This Law does not override any rule of law intended for the protection of

consumers.

3. *** The Commission suggests the following text for States that might wish to

extend the applicability of this Law:

 

"This Law applies to any kind of information in the form of a data message,

except in the following situations: [...]."

4. **** The term "commercial" should be given a wide interpretation so as to

cover matters arising from all relationships of a commercial nature, whether

contractual or not. Relationships of a commercial nature include, but are not

limited to, the following transactions: any trade transaction for the supply or

exchange of goods or services; distribution agreement; commercial representation

or agency; factoring; leasing; construction of works; consulting; engineering;

licensing; investment; financing; banking; insurance; exploitation agreement or

concession; joint venture and other forms of industrial or business cooperation;

carriage of goods or passengers by air, sea, rail or road.


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