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

GENERAL

A/CN.9/409/Add.3

26 April 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

Addendum

CONTENTS

Page

States

France ................................................. 2

Nigeria ................................................. 4

A. States

FRANCE

[Original: French]

Article 1. Sphere of application

The notion of international commercial law should replace that of commercial law in the first paragraph of article 1, the possibility of extending the scope of the Model Law to data messages of a domestic nature being accordingly allowed for in the footnote. This amendment is more in keeping with the object of UNCITRAL, which, as its name indicates, deals with international trade law.

Article 2. Definitions

(b) The agreed definition of electronic data interchange (EDI), i.e. electronic transfer from computer to computer ..., should be supplemented in the guide to enactment by an explanation as to whether or not the physical transmission of disks is covered.

(c) The term originator (initiateur) should be replaced by sender (expéditeur), since initiateur has no meaning in French. Moreover, the definition of expéditeur meets the intention of some delegations, namely generation of the information without communication; thus, in terms of substance, there is no obstacle to the proposed change.

(e) The term intermediary should be defined and retained as appearing in the draft Model Law; the reference to this intermediary in the definitions of sender and addressee should also be maintained. The guide should specify the role and powers that can be assigned to the intermediary, since the Model Law is deficient on this point, which the French delegation considers to be very important (cases where the parties dispense with an intermediary are rare; indeed, only a few very large enterprises can operate direct from one point to another without using the services of third parties or telecommunications systems).

(f) The words a system for should be replaced by the phrase an ensemble of technical means of, as was put forward as an option by the Working Group at its previous sessions. In our view, the phrasing Information system means a system ... is inappropriate both from a drafting viewpoint and in terms of substance, since the information system is in actual fact characterized by an ensemble of technical means.

Article 3. Interpretation

This article refers to the international source of the Model Law, which is justification for the suggested inversion in article 1, i.e. to establish the principle of the sphere of application as that of international commerce. The footnote will enable States that so wish to apply it to commercial law.

Article 5. Writing

It would be desirable to replace the existing text of paragraph (1) of article 5 by that of the second paragraph of article 6 of the proposed wording submitted by France (document A/CN.9/WG.IV/XXVII/CRP.2 of 1 March 1994), which reads:

Where a law or usage requires a written or original document, a (trade) data message exchanged by one of the means of communication covered by these Rules shall be considered to have legal validity provided that it faithfully reproduces what the parties exchanged and that it is recorded in an intelligible and reproducible form.

The guide should also add that a writing is a support (paper-based or electronic), an item of information and a medium (ink in the case of paper), in order to explain more clearly the functional approach adopted in the Model Law.

Paragraph 63 of the guide should state that the message must be retained in the form in which it was received, in order to include a reference to the integrity of the message.

Article 6. Signature

According to the draft text, the function of the signature is to identify the sender and also to approve the content of the information, provided that the method used is reliable, having regard both to the message and to any agreement made between the parties. The guide should specify that the term circumstances, which appears in paragraph (1) (b), applies also to commercial practice and trade usage.

Article 7. Original

The phrase information ... first composed in its final form can be regarded as being equivalent to the French term information d'origine or information originaire (original information).

Nevertheless, the guide should introduce a parallel, with a view to the possible incorporation of this article into the French legal system.

In paragraph (2) (b), the term fidélité would be preferable to intégrité (integrity).

Paragraph (2) (a) contains the word endossement (endorsement). It would be more appropriate to refer to marque [mark] or marquage [marking], since endossement has a very specific meaning in French law; no ambiguity is then possible, even if the guide explains that in this Model Law the term does not have the meaning attributed to it in French law.

Article 8. Admissibility and evidential value of data messages

Rectify the clerical error in the French version: the reference to article 8 should be changed to article 7.


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