Policy considerations on the Electronic Communications Convention

Transcription

1 Policy considerations on the Electronic Communications Convention Luca Castellani Legal Officer Secretariat

2 Purposes of the Electronic Communications Convention Four purposes of the Convention: 1. Facilitate the use of electronic communications in international trade law, in particular in connection with treaties concluded before the wide diffusion of electronic means; 2. Reinforce the level of uniformity in the implementation of the Model Laws; 3. Update certain provisions of the Model Laws on Electronic Commerce and on Electronic Signatures; 4. Provide core e-commerce legislation to developing countries.

3 1. Facilitate the use of e-communications Facilitate the use of electronic communications in international trade law, in particular with respect to treaties concluded before the diffusion of electronic means: New York Convention: Art. II(2), agreement in writing ; Art. IV, original or duly certified copy of the arbitral agreement [and of the arbitral award]. CISG: Art. 12, written form requirement. Both conventions have a large number of State parties: the procedure for their amendment is likely to be very cumbersome.

4 2. Increase uniformity in e-commerce legislation Goal: to reinforce the level of uniformity in the implementation and application of the Model Law on Electronic Commerce, 1996 and of the Model Law on Electronic Signatures, The Convention establishes a common legislative core for cross-border transactions. Example: functional cross-border recognition of electronic signatures (art. 12 MLES). several laws require a formal recognition act (usually, on a bilateral basis); art. 9(3) ECC uses a reliability test based on technology and other circumstances, including contractual agreements; it also ensures that when the e-signature has fulfilled its function it may not be repudiated.

5 3. Update model laws Update certain provisions of the model laws: Location of the parties (art. 6 ECC): Location of equipment, supporting technology; Place from where the information system is accessed; Use of country-specific domain name or address; are not necessarily relevant for the determination of the party s place of business. Party s intention in signing (art. 9(3)(a) ECC) better captures the various functions of signatures than the notion of approval (contained in art. 7(1)(a) MLEC).

6 3. Update model laws Update certain provisions of the model laws: Time and place of dispatch and receipt (art. 10 ECC): Dispatch occurs when the communication leaves the information system of the originator (amends art. 15(1) MLEC); Receipt occurs when the communication may be retrieved and, for non-designated addresses, the addressee is aware that a communication was sent (amends art. 15(2) MLEC).

7 3. Update model laws Introduce new provisions: Invitations to make offers (art. 11 ECC): A proposal not addressed to specific parties is considered an invitation to make offers Gives flexibility to on-line traders in controlling stocks (see also art. 14(2) CISG: an invitation to the public is an invitation to make offers); Use of automated message systems (art. 12 ECC): The contract is valid and enforceable also when no natural person reviewed or intervened in the actions carried out by the automated message system.

8 3. Update model laws Input error (art. 14 ECC) An input error may be withdrawn if The input error is made by a natural person dealing with an automated message system; The automated message system does not provide an opportunity to correct the error; The party in error notifies the other party as soon as possible of the error; The party in error has not received any benefit from the transaction.

9 4. Provide core e-commerce legislation About one-third of the world s jurisdictions lack e- commerce legislation. Other jurisdictions have only partial and insufficient provisions. The Convention may provide core e-commerce legislation to those countries, especially when enacted both domestically and internationally.

10 Sri Lanka s Policy Perspectives Sri Lanka is a signatory to the Electronic Communications Convention and has advanced electronic transactions legislation. Adopting the Convention would further strengthen its integration in the regional and global cyber-economy. Particularly important in light of specific needs: - Insular nature; - Commitment to economic development (e.g., remittances and mobile payments).

11 Status of adoption of the Convention. Convention is useful if widely adopted and used 18 signatories (including Korea, China, Russia, Sri Lanka) 3 State parties (Dominican Republic, Honduras, Singapore) Entry into force: 1 March 2013 Publicly committed to accession: Australia, Thailand. Consultation process on-going: Canada, USA. Enacted domestically: Ghana, Guatemala, Qatar, Rwanda, Trinidad and Tobago, Viet Nam, Zambia. Regional endorsements and de facto adoption: EAC, ESCAP, etc.