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Сопутствующие документы Distr GENERAL UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW ( Twenty-eighth session )
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Distr:

GENERAL

A/CN.9/409

21 February 1995

ORIGINAL: ENGLISH/

FRENCH

UNITED NATIONS COMMISSION ON

INTERNATIONAL TRADE LAW

Twenty-eighth session

Vienna, 2-26 May 1995

DRAFT MODEL LAW ON LEGAL ASPECTS OF ELECTRONIC DATA INTERCHANGE (EDI)

AND RELATED MEANS OF COMMUNICATION

Compilation of comments by Governments and international organizations

CONTENTS

Page

INTRODUCTION ................................................ 2

COMPILATION OF COMMENTS ..................................... 3

A. States

Poland .................................................. 3

Singapore ................................................ 4

United Kingdom of Great Britain and Northern Ireland .................. 8

B. Intergovernmental international organizations

Asian Development Bank ...................................... 13

European Union ............................................ 13

Food and Agriculture Organization of the United Nations (FAO) ........... 14

International Labour Office (ILO) ................................ 14

International Maritime Organization (IMO) ......................... 15

Organization for Economic Co-operation and Development (OECD) ......... 16

United Nations Economic Commission for Latin America

and the Caribbean (ECLAC) .................................. 16

C. Non-governmental international organizations

Banking Federation of the European Union .......................... 17

1/ Official Records of the General Assembly, Forty-ninth Session, Supplement No. 17 (A/49/17), para. 200.

INTRODUCTION

1. The Commission, at its twenty-seventh session in 1994, requested the Working Group on Electronic Data Interchange to present to it at its twenty-eighth session in 1995 draft model statutory provisions on electronic data interchange. 1/ The Working Group, at its twenty-eighth session (Vienna, 3-14 October 1994), approved a text of the draft Model Law on legal aspects of electronic data interchange (EDI) and related means of communication and presented it to the Commission for its consideration (A/CN.9/406, paras. 175-176).

2. The text of the draft Model Law as approved by the Working Group was sent to all Governments and to interested international organizations for comment. The comments received as of 15 February 1995 from 3 Governments, 7 intergovernmental international organizations and 1 non-governmental international

organization are reproduced below.

COMPILATION OF COMMENTS

A. States

POLAND

[Original: English]

General remarks Poland supports the general idea of adopting a model regulation of the legal aspects of electronic data interchange. The provisions of the draft could be largely incorporated into Polish national law, in particular in the regulations concerning banking settlements, both internal and international involving the participation of the Polish banks. Such an incorporation could be accomplished within the framework of the law of contracts, through an appropriate construction of relevant contracts.

In a long-term perspective however, an introduction of some adjustments in the relevant legal provisions might be required, in particular with regard to:

- the possibility of making declaration of will with the use of computer without hand-written signature of a given person;

- the possibility of recognizing the computer printouts as a document.

Detailed remarks

1. Article 5. Writing (written form)

Support is given to the tendency expressed in this article to grant the electronic messages legal effectiveness equivalent to their paper-bound counterparts (documents).

Some reservations however raises the proposal contained in point 1 of the article 5 stating that "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". It seems that this is a too general formulation and as such may cause some difficulties with its practical implementation. Therefore an insertion of an additional provision might be considered, stipulating that the electronic messages sent in accordance with the digital identification procedure (digital signature) would have an evidential value equivalent to the written documents.

2. Article 6. Signature

A modification of the contents of this article might be considered, giving also in this case preference to the digital signature which seems to fulfil most properly traditional functions of hand-written signature (identification of the originator of the document and indication of the originator's approval of the information contained therein). Such a modification would also allow other methods of substituting the traditional hand-written signature, if the contracting parties find it appropriate.

3. Article 12. Acknowledgment of receipt

The contents of this article might be supplemented with an additional point 6 stating that in case a message being sent contains digital signature, such an acknowledgment is redundant.

4. Renewed consideration should be given to a proposal of including within the framework of the draft Model Law a provision regarding the responsibility of the parties to contracts agreed upon under the EDI system in the formulation contained in article 15 of the previous draft of the Model Law.

SINGAPORE

[Original: English]


Title

The phrase "...LEGAL ASPECTS OF.." is too vague and adds nothing to the preceding phrase "..MODEL LAW..".

The phrase "..AND RELATED MEANS OF COMMUNICATION.." was adopted so that the model law could encompass various possible technologies or combinations of technologies. However, since there was a divergence of views at the 28th session as to the precise words to be used and the fact that the Working Group did not specifically focus on any particular related technology, perhaps this phrase should

be deleted.

For the above reasons, we suggest changing the title to:

"DRAFT MODEL LAW ON ELECTRONIC DATA INTERCHANGE".

Article 1. Sphere of application

The phrase "This Law forms part of commercial law." is superfluous. The drafting style also does not follow that used in the first articles of other UNCITRAL texts. For example, article 1(1) of the UNCITRAL Model Law on International Commercial Arbitration reads, "This Law applies to international commercial arbitration.." and article 1(1) of the UNCITRAL Convention on International Bills of Exchange and International Promissory Notes reads, "This Convention applies to an international bill of exchange..".

For the above reasons, we suggest amending article 1 as follows:

"This Law applies to commercial transactions where information in the form of a data message is used."

For similar reasons, we suggest amending the footnote to article 1 relating to the sphere of application (for States who wish to restrict such application) as follows:

"This Law applies to international commercial transactions where information in the form of a data message is used."

Article 2(a). Definition - "Data message"

The concluding phrase "including, but not limited to, electronic data interchange (EDI)... or telecopy;" is unnecessary and may even extend the scope of the model law beyond what was originally intended.

We also suggest the use of the word "retained" in place of "stored" so as to be consistent with article 9.

We therefore suggest the following definition:

"'Data message' means information generated, retained or communicated by electronic, optical or analogous means;"

Article 2(c). Definition - "Originator"

The generation or storage of data messages does not create legal problems. It is the sending of such messages which has given rise to legal uncertainties. Therefore, the purpose for defining this term should be confined to that of determining who the sender of a data message is (other than an intermediary) as opposed to who generated or stored the data message.

We therefore suggest the following definition:

"'Originator' of a data message means a person by whom, or on whose behalf, the data message purports to have been communicated, but it does not include a person acting as an intermediary with respect to that data message;"

Article 3. Interpretation

While the present formulation emphasizes the need to interpret so as to be able to apply the model law uniformly between different countries, it should also highlight the fact that the model law is intended to facilitate the use of EDI and analogous means of communication in commercial transactions.

For this reason, we suggest the following change:

"(1) In the interpretation of this Law, regard is to be had to its international source, the need to promote uniformity in its application and the observance of good faith, as well as its purpose to facilitate the use of electronic data interchange and analogous means of communication in commercial transactions."

Article 4. Legal recognition

Other than stating the principle that a data message is to be legally recognized, this provision does not serve any purpose because it does not preclude an objection to a data message on any other ground. It is felt that articles 6-9 are more than sufficient to give legal recognition to a data message.

We therefore recommend deleting article 4.

Article 6. Signature

In respect of article 6(1)(b), we suggest the insertion (immediately after paragraph (1)(b)) of the following considerations in determining the reliability of the method used to identify the originator:

"In determining whether that method is reliable, regard shall be had to the following:

(i) the relative bargaining positions of the originator and the addressee in their choice of the method of identification;

(ii) the importance and value of the information in the data message;

(iii) the availability of alternative methods of identification and the cost of implementation;

(iv) the degree of acceptance or non-acceptance of the method of identification in the relevant industry or field both at the time the method was agreed upon and the time when the data message was communicated; and (v) the state of science and technology at the time the method was agreed upon."

Article 7. Original

With regard to article 7(1)(a), we have the following comments:

(a) we fail to see the relevance for imposing this requirement that the information be displayed to the person to whom it is to be presented;

(b) the requirement ignores the reality that in many EDI systems, the processing of data messages is automated with little or no human intervention. This means that the data message may not be displayed to any person at all nor is there a need to do so; and (c) the requirement to display information raises the question as to whether the raw information (usually in the form of unintelligible machine language) should be displayed or the processed and intelligible information in the form of the final data message be displayed. Such a data message in its processed form is never "original". A sample copy of an EDI EDIFACT data message which is made up of unintelligible alpha-numeric characters is enclosed to illustrate * Note by the Secretariat: this sample copy is not reproduced in this document.

this point. */

As for article 7(1)(b), we feel that the concept of a "reliable assurance" is completely vague and difficult to apply. What exactly is an "assurance" as compared to a "method" which is the term used in article 6 and what is the acceptable standard of reliability?

For these reasons, we propose that paragraph (1)(a) be deleted and article 7(1) be drafted as follows:

"Where a rule of law requires information to be presented in its original form, or provides for certain consequences if it is not, a data message satisfies that rule if the integrity of the information between the time when it was first generated in its final form, as a data message or otherwise, and the time when it is received by the addressee is maintained."


In respect of article 7(2), we recommend substituting in paragraph (2)(a) the words "normal course of communication, storage and display; and" with the words "normal course of communication and storage." and deleting paragraph (2)(b). Article 7(2) in our proposed form would read:

"Where any question is raised as to whether paragraph (1) of this article is satisfied, 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 and storage."

Article 8. Admissibility and evidential value of data messages

We recommend the following changes:

(a) in the title, "value" be replaced with "weight";

(b) in article 8(1), "admission" be replaced with "admissibility";

(c) in article 8(1)(a), "grounds" be replaced with "sole ground";

(d) in article 8(1)(b), the words "in writing, signed or" be inserted after the word "not";

(e) in article 8(2), "presented" be deleted;

(f) in article 8(2), "stored" be replaced with "retained"; and

(g) in article 8(3), the words "in writing, signed or" be inserted after the words "on the grounds that it is not".

Article 10. Variation by agreement We suggest replacing the word "storing" with the word "retaining" so as to be consistent with

article 9.

Article 12. Acknowledgment of receipt

In article 12(5), it is desirable to state clearly what type of acknowledgment of receipt is being contemplated. This is because EDI systems are able to generate two types of acknowledgment messages–functional acknowledgment and system acknowledgment. The latter is system generated i.e. triggered the moment the addressee reads or down-loads the data message.

Article 13. Formation and validity of contracts

At the end of article 13(1), we suggest that the words "a data message was" be replaced with the words "one or more data messages were".

Article 14. Time and place of dispatch and receipt of data messages

The present formulation of this article does not provide for the situation where a data message is dispatched and enters an information system of the addressee's intermediary which information system was neither designated by nor belonging to the addressee.

UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

[Original: English]

Article 2(c)

The effect of this definition as drafted is that, where a data message is communicated to an addressee, and stored by that addressee, the person who communicated the data message and the addressee will both be an "originator" of it. This is likely to cause confusion. For example, article 6 provides that any rule of law requiring a signature can be satisfied by using a reliable method to identify the originator.

It is important to recognize that messages may be stored without necessarily being communicated; but, whether or not the data message is communicated, the person designated as the "originator" should be the person who generated the data message, and no other person. To ensure that this is the case, the words "stored or communicated" should be replaced by "whether to be stored or to be communicated".

This amendment would also greatly simplify the definition because the exclusion of intermediaries would be achieved without any need for the final words ("but it does not include a person acting as an intermediary with respect to that data message"). These words could therefore be deleted.

Article 2(d)

The intention is that this definition should cover only the person with whom the originator intends to communicate by transmitting the data message. At present, the definition could also catch persons to whom the originator intended the addressee to copy or pass on the message. Article 2(d) should therefore be amended to read:

"(d) "Addressee" of a data message means a person with whom the originator intends to communicate by transmitting the data message."

This would also enable the reference to an "intermediary" to be deleted.

Article 2(e) The definition, as it now appears, is too wide. It covers any person who acts as an agent in receiving, transmitting or storing a data message, and is not limited to professional intermediaries in the sense in which the term is normally understood. Furthermore, the term "intermediary" is not used in the substantive provisions of the Model Law. It appears only in the definitions in article 2(c) and (d). As indicated above, these references to an "intermediary" are better avoided. The inclusion of a definition is therefore both unnecessary and confusing. It should be deleted.

Article 2(f)

To define "information system" in terms of a "system" is circular. Moreover, the word "system" in English has a number of possible meanings (for example, methodology), and is too vague. The UK considers that "information system" should be defined as meaning:

"the equipment, software and operational control which permit information to be generated, communicated, received or stored in a data message".

Article 4

The principle of this provision is accepted, provided that it can be drafted satisfactorily. There are two points on the drafting.

Firstly, the intention is not to affect requirements for particular formalities. (These are dealt with by articles 5, 6 and 7). The provision as drafted, however, does not make it clear that requirements for particular formalities (such as writing, or an original or a deed) are not affected where the inevitable and automatic consequence of using a data message is that the requirement is not satisfied. In such cases it would be possible to say: "The information is in a data message; therefore the necessary requirement (e.g.

for writing etc.) has not been satisfied". As drafted, article 4 could thus be read as striking down the requirement in question. Since that is not the intention, some clarification is needed.

Secondly, the provision says that information shall not be denied legal effectiveness etc. It is not information as such, however, which has legal effectiveness. Documents, records and transactions may have legal effectiveness. Information does not. There is no such thing as legally effective information;

information is merely disembodied data. (For this reason, too, it is awkward to refer to information as being "in the form of a data message". Information as such has no form, although it may be "recorded in the form" or "communicated in the form" of a data message.)

To take account of these points, the UK would suggest redrafting the provision as follows:

"The use of a data message to record or communicate information shall not affect the legal consequences of the record or communication or of what is recorded or communicated, provided that no particular requirement applies which the use of a data message does not satisfy."


Article 5(1)

Where a transmission is only valid if it is in writing, the date that it is put into writing becomes important.

If the transaction is concluded orally, and is only subsequently recorded in a data message, or a series of data messages, it is essential that the requirement for writing is only satisfied as from the date that the relevant data message is generated. As drafted, article 5 would have the effect that in such a case a subsequent data message could satisfy the requirement retrospectively.

Article 5 merely states that "a data message satisfies that rule", i.e. any data message, regardless of when it was generated. This would include a subsequent data message, and the article would therefore have the effect that a subsequent data message satisfied the rule as from the date that the rule became applicable. Yet when an oral transaction is subsequently put into writing, the written document can only be relied on, as satisfying the requirement that the transaction must be in writing, as from the date that the written document is generated. The same principle should apply to data messages.

The UK therefore considers that, after the words "data message", there should be inserted:

"generated at the relevant time".

The reference to "the relevant time" here would mean the time in respect of which the rule is applicable.

It is the significant time, the time at which it is significant to know whether the rule was satisfied for the purpose of determining any issue.

Article 11

Paragraph (2): The word "ascertained" should be replaced by "took appropriate steps to ascertain". As drafted, the word "ascertained" implies that the addressee was able to establish as a fact that the data message was that of the originator. In those circumstances, the provision would be unnecessary. All that is intended is that the provision should apply where the addressee carried out the agreed procedure.

Paragraph (3): The words "Where paragraphs (1) and (2) do not apply" should be replaced by "Where paragraph (1) has not been shown to apply". Alternatively, these opening words should be deleted.

Whilst it is true that paragraph (3) should not apply where it is known that the communication was authorised, neither should it apply where it is known that the communication was not authorised. As drafted, paragraph (3) applies (and only applies) where the data message was not communicated by the originator or by another person who had the authority to act on behalf of the originator. Instead, paragraph (3) should only apply where there is uncertainty as to whether paragraph (1) applies.

For this purpose, it is not necessary to refer to paragraph (2). All that is necessary is that there should be uncertainty as to whether paragraph (1) applies.

As regards the choice between the words in square brackets, the UK considers that the presumption should be rebuttable, and the word "presumed" should therefore be chosen.

Paragraph (3)(b): The word "ascertained" should be replaced by "took appropriate steps to ascertain". As in paragraph (2), the word "ascertained" implies that the addressee established as a fact that the data message was that of the originator. All that is intended is that the addressee used a reasonable method of verifying.

Tailpiece to paragraph (3): The words "subparagraphs (a) and (b) do not apply" should be replaced by "this paragraph does not apply." The operative part of the paragraph which is disapplied is in the chapeau.

(Subparagraphs (a) and (b) merely set out the conditions where the chapeau applies.)

In addition, after the words "any agreed procedure", in the tailpiece to paragraph (3), there should be inserted "for ascertaining". At present, the connection with the words that follow is missing.

To make this sentence less cumbersome, it could perhaps be redrafted as follows:

"However, this paragraph does not apply if the addressee knew that the data message was not that of the originator, or should have known that it was not, by the exercise of reasonable care or the use of any agreed procedure for ascertaining whether it was."

Paragraph (4): As a minimum, certain amendments would be needed to attempt to make sense of the second sentence. However, the UK strongly believes that logic requires the second sentence to be deleted, because it was conceived on the basis that the presumption in the first sentence was to be irrebuttable, and this is no longer the case.

The presumption in the first sentence is rebuttable. As drafted, however, the second sentence applies where there has, as a matter of fact, been an error in the content. This conjunction of a rebuttable presumption with the premise that there has been an error is contradictory, because where there has, as a matter of fact, been an error in the content, the presumption in the first sentence will inevitably be rebutted in any event, and the second sentence will therefore be superfluous.

In addition, the second sentence is actually incorrect in applying the presumption by implication, where there has as a matter of fact been an error of which the addressee was unaware (and where the addressee was not negligent). There cannot be a rebuttable presumption that the content was correct where the known fact is that there was an error.

If the second sentence is to be retained, therefore, it needs to be revised along the following lines.

(The suggested alterations are underlined.)

"However, where the originator alleges that the transmission has resulted in an error in the content of a data message... the content of the data message is not presumed to be that received by the addressee insofar as the data message is alleged to have been erroneous, ..."

This would make it clear that the presumption only applies in case of uncertainty as to whether the originator is correct in alleging an error.

In addition, the drafting does not work at present in the case of an erroneous duplication of a data message. In such a case, the addressee believes that there were two data messages. It does not therefore make sense to say that the content of the data message (singular) is not presumed to be that received by the addressee. To meet this point, the wording would need to be revised as follows:

"... the content of the data message or messages received by the addressee is not presumed to be that transmitted by the originator insofar as the data message or messages are alleged to have been erroneous, ..."

However, if it can be shown that an addressee knew of an alleged error, or that an alleged error would have been apparent if the addressee had exercised reasonable care, it will generally be possible, and indeed easier, to show that the alleged error actually existed. It is therefore superfluous to provide a rebuttable presumption that the error existed in those circumstances.

The second sentence of paragraph (4) should therefore be deleted altogether.

In the UK's view, this defect in the current draft has arisen in the following way. The second sentence of paragraph (4) was drafted on the assumption that the presumption in the first sentence was to be irrebuttable ("deemed"). On that basis, the second sentence makes sense. The UK agreed with the policy decision to make the first sentence a rebuttable presumption; but now this has been done, the logical consequence of making the presumption rebuttable is that the second sentence should be deleted.

Article 12(5)

The first sentence of paragraph (5) covers two situations. The first is where there is a dispute about whether it was the addressee or another person who sent the acknowledgement of receipt. The second is where it is agreed that the addressee sent the acknowledgement of receipt, but there is nevertheless a dispute about whether the addressee received the originator's message.


The first situation is already covered by article 11, and should not be covered here. Moreover, the position under this provision is inconsistent with article 11(2) and (3), because under this provision the mere receipt of the acknowledgement is in effect sufficient to give rise to a presumption that the acknowledgement was sent by the addressee.

The first sentence of paragraph (5) should therefore be confined to the case where it is accepted that the acknowledgement was sent by the addressee, but it is disputed that the addressee received the originator's data message. The situation where there is a dispute as to whether the acknowledgement originated from the addressee will then be covered by article 11.

To achieve this result, the following words should be inserted after "Where the originator receives an acknowledgement or receipt":

"transmitted by or on behalf of the addressee".

Article 13

The UK considers that a similar point arises here as on article 4. In the UK's view, the end of the second sentence of paragraph (1) should be amended, by replacing the words "on the sole ground that a data message was used for that purpose" by the following: "on the grounds that a data message was used for that purpose, provided that no particular requirement applies which the use of a data message for that purpose does not satisfy."

The UK understands that the intention of this sentence is not to affect requirements that a contract, or a particular kind of contract, must be in writing.

As drafted, however, the second sentence appears to prevent a statutory requirement that a contract, or a particular kind of contract, must be in writing from having the effect of invalidating a contract concluded by means of data messages, in a case where the contractual agreement of the parties, or the terms to which they agree, are never expressed in writing.

If it is possible to say that, because the contract was only ever expressed in data messages, the requirement for writing has not been satisfied, then it would seem to be the case that the sole ground for denying the validity or enforceability of the contract is that data messages were used for this purpose.

Article 13(1) would therefore render the statutory requirement ineffective. Since we understand that this is not the intention of the Working Group in drafting the second sentence, a clarification is needed as suggested above.

The reference to "the sole ground" is likely to lead to difficult semantic argument as to whether a contract is being denied validity or enforceability on the sole ground that a data message was used, in a case where the objection is made that the contract was concluded by means of data messages, and therefore was not in writing as required. The word "sole" should therefore be deleted, and instead (as stated above) there should be added, at the end of the sentence, a new proviso that no particular requirement applies which the use of a data message for this purpose does not satisfy.

Article 14(4)

Insofar as it relates to the deemed place of despatch, this rule may be unnecessarily restrictive. If the originator specifies in the data message the place from which it was actually despatched, this should not be overridden by a rule which artificially deems the message to have been despatched from somewhere else.

The UK therefore considers that, in the first sentence, the words "at the place where the originator has its place of business" should be amended to read:

"at the place specified by the originator in the data message, or, in the absence of such specification,at the place where the originator has its place of business".

B. Intergovernmental international organizations

ASIAN DEVELOPMENT BANK

[Original: English]

The Bank's Legal Office has reviewed the draft text of the Model Law and we have no comments to make on the document.

EUROPEAN UNION

[Original: English]

Article 1. Sphere of application

In the first footnote to chapter I it is mentioned that "this Law does not override any rule of law intended for the protection of consumers". In paragraph 78 of the Deliberations of the Working Group it is stated that the Working Group found the substance of the footnote to be generally acceptable.

The European Commission considers that the term "consumers" is perhaps too narrow. We presume that this Model Law, even though it may (also) be applicable to natural persons, does not purport to override any fundamental freedoms and rights of natural persons as recognized in international treaties, constitutions and other laws. Explicit reference is made to article F (2) of the Treaty on European Union, which reads:

"2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the protection of human rights and fundamental freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of community law".

As a pertinent example of the application of these rights within the European Community, reference is made to the proposal for a Directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data, Com (92)

422 final - SYN 287. It is expected that a common position will be reached by the Council of Ministers on 20 February 1995 with a view to the adoption of this proposal.

In light of the foregoing, the European Commission proposes to change the above-mentioned footnote as follows:

"This law does not override any rule of law intended for the protection of fundamental rights and freedoms of individuals or for the protection of consumers".

FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS (FAO)

[Original: English]

FAO has no comments to make.

INTERNATIONAL LABOUR OFFICE (ILO)

[Original: English]

The Model Law would seem to fall largely outside the area of the ILO's mandate, and our comments are thus restricted to the possible impact it might have in the labour field.

The sphere of application specifies that the Model Law "forms part of commercial law." The definition of commercial law in the footnote states that it should be given a wide interpretation. Although it does not appear that the Model Law is intended to govern contracts of employment or other relationships between employers and employees, this is not explicitly excluded. To avoid such an impression, it might be

better to explicitly exclude such contracts and relationships.

Alternatively, consideration might be given adding a reference to workers in the first footnote, which would then read, "This Law does not override any rule of law intended for the protection of consumers or workers."

Should this understanding, i.e. that the Model Law is not to apply to the employer/employee relationship, be incorrect, the Office would be quite willing to provide additional comments on the text.

These would relate in particular to concerns regarding the confidentiality of data retained, in the interest of workers' privacy.


INTERNATIONAL MARITIME ORGANIZATION (IMO)

[Original: English]

It appears that the draft legislation would not be of immediate relevance to the activities of IMO.

However, it may become applicable in respect to the International Ship Information Database (ISID) currently being developed. While it is unclear to what extent the model legislation would be applicable, insofar as the objectives and structure (including users, providers and access) of the ISID are still being formulated, the following observations concerning matters of general relevance to ISID are offered for consideration. These comments relate to specific articles of the draft model law set forth in document A/CN.9/406, 17 November 1994, at Annex.

(1) Article 6. Signature

In respect to the method used to identify the originator of the data message, article 6(b) provides that:

"... that method is as reliable as was appropriate for the purpose for which the data message was generated or communicated, ...". This provision could be seen to be insufficiently clear as to the standard of reliability applicable to the method used to identify the originator. Perhaps consideration could be given to identifying with greater specificity the applicable criteria relating to the term "reliable" and the intended standard of reliability.

(2) Article 7. Original

Article 7(2)(b) makes reference to "the standard of reliability required" regarding originals. The standard can be seen to be insufficiently clear, and perhaps consideration could be given to providing objective criteria for the applicable standard of reliability, or appropriate clarification in a guide to enactment.

It may perhaps be useful to clarify what this standard of reliability applies to; that is, whether it applies to the "reliable assurance as to the integrity of the information" under article 7(1)(b), or, for example, to the manner in which the data record was generated, stored, communicated or authenticated.

(3) Article 8. Admissibility and evidential value of data messages

Article 8(2) refers to reliability in relation to data messages and to the integrity of information. The standard of reliability to be applied is unclear and perhaps consideration could be given to establishing objective criteria for the applicable standard of reliability, or appropriate clarification in a guide to enactment.

(4) Article 11. Attribution of data messages

The final paragraph of article 11(3) provides: "However, subparagraphs (a) and (b) do not apply if 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."

One matter which could cause some concern is whether this provision should include the situation where the addressee "should have known, had it exercised reasonable care", inasmuch as this would appear to impose a subjective standard of insufficient clarity as to the burden placed on the addressee, where consequences of liability for damages could be involved. Perhaps this matter could be taken into consideration in the preparation of the analytic commentary.

ORGANIZATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT

[Original: English]

While having no specific suggestions to make for amendment, the OECD wishes to recommend to the attention of UNCITRAL the following Guidelines, which have been adopted and implemented by 25 OECD Member countries as well as by hundreds of private enterprises:

- 1992 OECD Guidelines for the Security of Information Systems, in particular the definitions of "data", "information" and "information systems", the nine principles of the Guidelines, and the provisions for implementation; and - 1980 OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data.

UNITED NATIONS ECONOMIC COMMISSION FOR LATIN AMERICA

AND THE CARIBBEAN (ECLAC)

[Original: English]

ECLAC has no comments to make.

C. Non-governmental organizations

BANKING FEDERATION OF THE EUROPEAN UNION

[Original: English/French]

I. GENERAL OBSERVATIONS

The Banking Federation believes that the draft model law should be reviewed in regard to the use of concepts. The method used - which is to seek the functional equivalents, in terms of electronic data interchange, for writing (article 5), for a signature (article 6) and for the original (article 7), does not seem to us to be the best. Data processing and EDI clearly give rise to entirely new legal problems which appear inappropriate to resolve by traditional means.

We furthermore think that the French version of this document calls for criticism due to lack of clarity in the wording.

II. OBSERVATIONS ON THE ARTICLES OF THE DRAFT MODEL LAW

1. Chapter I - General provisions

Article 1: Sphere of application

The purpose of including the statement that the law only relates to commercial law could be questioned, given that the text is produced by UNCITRAL - United Nations Commission on International Trade Law.

Article 3: Interpretation

Article 3(2) refers to the general principles on which the law is based. This reference is too imprecise and risks giving rise to differences in interpretation and even conflict

2. Chapter II - Application of legal requirements to data messages

Article 4: Legal recognition of data messages

This article prohibits the denial of any legal effectiveness, validity or enforceability to a "data message".

This provision seems much too vague to be acceptable in its current form.

Articles 5 and 6: Writing - Signature

These provisions (which give the "data message", with respect apparently to the validity of agreements, equal force to writing accompanied by a hand-written signature) remove any specific value from writing when the latter is required "ad solemnitatem". It must be asked whether problems of enforceability vis-à-vis third parties could not arise.

Reference should be made in article 5(1) to the requirement for the information to be sound. A question also arises as to whether "subsequent reference" would be on a unilateral or bilateral basis.


In addition, since article 6 is included in Chapter II, this provision cannot be varied by agreement.

The possibility provided for under article 10 only applies to the provisions of Chapter III. It should be ensured that the obligations of a technical nature established by this article do not create excessively burdensome constraints.

With regard to article 6(1)(b), who decides whether this method is reliable? In addition, this provision could lead to fears that, despite the existence of an agreement between the originator and the addressee stablishing a particular identification procedure, the signature on the data message could be called into question on the basis that the identification process was not reliable.

Articles 7 and 8: Original - Admissibility and evidential value of data messages

These provisions confer on "data messages" an evidential value equivalent to writing, leaving it to the courts to assess the weight of the evidential value.

What is meant by "reliable assurance" in article 7(1)(b)?

In article 7(2)(a) mention is made to "whether the information has remained complete and unaltered".

Who will determine whether and how this is the case?

Article 8(1) (whereby "nothing in the application of the rules of evidence shall apply so as to prevent the admission of a data message in evidence") and article 8(1)(b) (which provides for the application of any other rule of law "if it is the best evidence that the persons adducing it could reasonably be expected to obtain") would seem to be contradictory.

Article 9: Retention of data messages

These provisions warrant greater detail, in particular as regards proof that the data transmitted and received are identical and that they can be reproduced in legible form.

Since it is impossible to alter the provisions of this article by agreement, it should be ensured that this article does not impose excessive constraints.

We also feel that the phrase "where it is required by law" in the first sentence of the article is ambiguous. In general, it may be presumed that the retaining of data messages is always required by law.

Proof must be retained of the performance or transmission of an order. But if this is the meaning to be given to this phrase, the provisions of this article would impose disproportionate constraints. It would be more realistic to limit the scope of this article to cases where the law requires specific retaining of documents for reasons of general interest

Article 9(1)(c) is difficult to understand in its current wording. It should at least be altered as follows "... including, but not limited to, information associated with the originator, addressee(s), and date and time ..."

3. Chapter III - Communication of data messages

Article 10: Variation by agreement

This article enables the parties to derogate by agreement from the provisions of this chapter, except as otherwise provided.

The question is whether it can rightly be concluded, in contrast, that the provisions of the other chapters are binding.

Article 11: Attribution of data messages

Article 11(2) contains a contradiction in that it states that the data message can be presumed to be that of the originator if the addressee has ascertained that the message emanated from the originator.

The solutions provided in article 11(3)(a), (b) and the last paragraph (which either make it possible to attribute to the originator a data message which cannot be presumed, under articles 11(1) and (2), to emanate from him, or on the contrary exclude this possibility) make reference to imprecise data (see in particular "... whose relationship with the originator ..."), which appear to make them difficult to apply.

How can it be determined whether "reasonable care" - provided for under article 11(3), last paragraph, and article 11(4) - has been exercised?

Article 11(5), whereby any legal effect of presuming that a message emanated from the originator "will be determined by this Law and other applicable law", would seem to conflict with article 10.

Article 12: Acknowledgement of receipt

The meaning of and justification for article 12(4)(b) are not easy to see. Indeed, if an

acknowledgement of receipt is not a prerequisite for performance of the instructions contained in the data message, how can it be presumed (in the event that an acknowledgement of receipt is not received within a given deadline) that the data message had never been transmitted (since it might have been received and been performed)?

What is meant moreover by the phrase "exercise any other rights it may have"?

Article 13: Formation and validity of contracts

The provisions of Chapter III apply directly to data messages received outside the contractual framework. This would be the case, for example, with an order received by fax, electronically or otherwise. Under the provisions of Chapter II, such an order could not per se be systematically deemed to have been invalidly issued. It is essential that the addressees, and in particular banking institutions, retain the possibility of refusing to execute orders which are only presumed to have come from the originator.

It would therefore be appropriate for the model law to establish the principle whereby the addressee can always demand confirmation in another form of the data message and article 13(1) should be reworded as follows: "In the context of contract formation, unless otherwise agreed by the parties or a contrary view is expressed by one of the parties, ...".

Finally, can the originator not withdraw the offer before it is received or known to the addressee?

Article 14: Time and place of dispatch and receipt of messages

The references to "unless otherwise agreed" in article 14(1), (2) and (4) serve no purpose since article 10 is included in Chapter III (see article 10).

With regard to article 14(2)(a), what are the procedures or possibilities of control at the disposal of the originator to check that the data message has genuinely been received?

 


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