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Сопутствующие документы Distr. LIMITED UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW Working Group on Electronic Data Interchange ( Twenty-ninth session )
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Distr.

LIMITED

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

1 February 1995

ORIGINAL: ENGLISH

UNITED NATIONS COMMISSION

ON INTERNATIONAL TRADE LAW

Working Group on

Electronic Data Interchange

Twenty-ninth session

New York, 27 February - 10 March 1995

ELECTRONIC DATA INTERCHANGE

Proposal by the United States of America

Note by the Secretariat

1. At its twenty-eighth session, the Working Group noted that its recommendation to the Commission, 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 draft Model Law was completed (A/CN.9/390, para. 158), had found general support in the Commission (Official Records of the General Assembly, Forty-ninth Session, Supplement No. 17 (A/49/17), para. 201). It was stated that related legal issues involving electronic registries were a necessary part of such a project (ibid., para. 178).

2. As to the planning of future work, the view was expressed that the Working Group at its twenty-ninth session, after completing its consideration of the draft guide to enactment to be prepared by the Secretariat, could have a general discussion on negotiability and transferability of rights in goods. Another view was that the issue of incorporation by reference could also be considered at the twenty-ninth session

for possible inclusion in the draft Model Law. A number of delegations expressed their willingness to prepare a brief paper to facilitate discussions on both topics. It was noted, however, that, while the Working Group might have sufficient time for a general discussion, it could not go into detail on either topic (ibid., para. 179).

3. Following the twenty-eighth session of the Working Group, the Secretariat received from the delegation of the United States of America the text of a note discussing negotiability and transferability of rights in an EDI context. The text of that note is reproduced as an annex to this note as it was received by

the Secretariat.

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

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Annex

NEGOTIABILITY AND TRANSFERABILITY

IN ELECTRONIC COMMERCE

AND THE UNCITRAL DRAFT MODEL LAWS FOR EDI

In accordance with the views of the Commission expressed at the 27th Plenary session, and prior discussion of the Working Group, it is proposed that the Working Group examine the legal issues encountered in the negotiability and transferability of tangible goods in international commerce through electronic data interchange (EDI), with a view to making recommendations to the 28th Plenary session as to whether such work should be continued. Achieving generally applicable or recognized rules to support negotiability and transferability through EDI could be a significant achievement by the Commission.

The following topics should be considered for initial discussion; all topics are directly or indirectly related to the subject of electronic registries, which is discussed below. It will also be necessary to discuss the relationship of proposed EDI rules with the U.N. convention on operators of transport terminals, and other relevant international legal texts.

(a) Establishing a preliminary list of areas of commercial practice which should be included in this effort.

(b) Draft rules for validation of agreements for negotiability and transferability through EDI of rights to tangible goods.

(c) Criteria if any for party(ies) to be holders in due course for the transfer of rights to goods or to subsequently negotiate such rights through EDI.

(d) Affect on third parties with or without notice.

(e) Default rules for allocation of risk.

(f) Electronic registries (see below).

While the Draft Model Law provides the necessary and basic law to facilitate EDI, it should be supplemented by the Working Group for the more complicated functions expected to be needed in Electronic Commerce, such as negotiability and transferability. To be able to address that, it would be useful to identify the potential uses of negotiability and transferability, which are likely to include bills of

lading, warehouse receipts, leases and secured transactions, and possibly land sales and mortgages.

Commodity trading, currency exchanges, bonds and securities should be dealt with, if at all, at a later stage, although legal issues related to those fields may be relevant now. Other uses could be identified as well.

Next it would be helpful to identify the areas of legal uncertainty surrounding these uses. It can be expected that each use would have its own needs, so it might be best to focus on the particular use most developed for EDI, which is bills of lading.

UN/EDIFACT is developing the message sets necessary to create an EDI bill of lading. The CMI has provided voluntary rules for the use of such messaging. The ICC, Paris has sanctioned the use of electronic bills of lading in its INCOTERMS, 1990 and UCP500. So what then is lacking for the use of A/CN.9/WG.IV/WP.67

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such bills of lading? Primarily an EDI intrastructure supported by appropriate rules which UNCITRAL may be in a position to formulate.

Even if the ocean carriers were to adopt the full set of UN/EDIFACT messages for ocean carriage, and the banking industry were to adopt messages and procedures for documentary credits, the system would still lack the legal underpinnings that would encourage negotiation and transfer in even the larger trade routes. Voluntary rules, such as the CMI Rules for Electronic Bills of Lading give way when they conflict with a State's laws. For that reason, model laws are needed that would permit or facilitate the use of EDI in establishing transfer of rights, including the use of registries as a means of documenting and supporting the transfer of goods or their enforcement is uncertain in the absence of laws formulated for this purpose.

Negotiation or transfer of any type, in the absence of paper, will require an understanding and supporting legal rules or standards as to who will be recording each transaction (and thus be able to effect the negotiation or transfer), what are the default standards for allocation of risks, and that the procedures are supported by, or at least are not contrary to, a State's laws which can be harmonized as to international transactions.

Three concepts of registries might be governmental, central and private. There may be other types that should be considered as well, but these three may be thought of as:

1. Governmental - an agency of the State records transfers as public records, and

may authenticate or certify such transfers. Such a registry is important for high value

property such as ships, aircraft, land transactions, etc. For public policy reasons, the

State is usually not liable for any errors, and the cost is borne through user fees.

2. Central - where a commercial group conducts its transactions over a private

network (such as SWIFT), accessible only to its members. This type of registry is

needed where security and speed are critical. Its limited access permits party

verification to be done quickly facilitating speed and enhancing security. Access to the actual records of the transactions are usually limited to the users, but summaries of the transactions can be reported publicly in summary form (as in securities trading). The rules of the network usually govern the liabilities and costs. International rules or a model law to support the transborder application of such "system rules" is needed.

3. Private - conducted over open networks, where the issuer of the document (or

the party having responsibility for delivery of the subject of the transaction) administers the transfer or negotiation process (as in the CMI Rules for Electronic Bills of Lading).

The records are private, and the costs may be borne by each user. Liability parallels the present practice with paper, in that the administrator is obliged to deliver to the proper party unless excused by another party's error, in which case local law may apply. This method avoids building added complexity and cost to transactions not presently done over central registries, but would also need international rules or harmonization through a model law, at least as to transborder cases.

A table of characteristics of these registries is enclosed.

In negotiation or transfer, as they presently exist, some party or system must stand behind the document issued and verify its authenticity. That function is in part likely to be filled by an electronic A/CN.9/WG.IV/WP.67

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* An area not well defined by the Hamburg Rules or other cargo liability schemes is the resolution of disputes arising out of the bill of lading itself. While possibly beyond the scope of this Working Group, the need for better definition in this area will, no doubt, become apparent as we explore these issues.

registry in EDI. It should be borne in mind that what is being "transferred" is not the paper or EDI message (that being just the medium), but the rights and/or title to the subject of the transaction.

Accordingly, a model law to guide the creation and use of registries, and to provide default standards for allocation of risks in the use of registries, particularly for bills of lading * should be the goal of this Working Group.

The types of registry contemplated by supporting rules should be appropriate to the type of transaction to avoid over complexity and/or extra costs, lest the effect be to discourage the use of such processes. Security should be appropriate to the types of transaction, and consistent with the model laws. Apportionment of risks would need to be addressed, taking into account commercial customs and practice, local law, and model international laws and rules, such as that currently under preparation by

the Working Group, taking special care not to discourage commercial uses of EDI.

REGISTRIES

GOVERNMENT CENTRAL PRIVATE

Purpose record transfer and record transfer

Access public members private

Administrator government third party issuer

Costs user fee membership internal

Insurance none network party

Allocation of Risk on user on user by law, custom or agreement

Security moderate highest as needed

Uses real estate (deeds and mortgages), leases, secured transactions securities, commodities, bonds, money, foreign currency bills of lading, warehouse receipts,

cotton receipts


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