When was UNCITRAL established? And why?

Transcription

1 The significance of technology neutrality in support of trade facilitation 6 June 2013 Jaesung Lee (Secretary of Working Group IV on Electronic Commerce) Ahreum Lee (Former Legal Officer) Secretariat Vienna, Austria When was established? And why? 1

2 Composition of Algeria (2016) Fiji (2016) Nigeria (2016) Argentina (2016) France (2013) Norway (2013) Armenia (2013) Gabon (2016) Pakistan (2016) Australia (2016) Germany (2013) Paraguay (2016) Austria (2016) Greece (2013) Philippines (2016) Bahrain (2013) Honduras (2013) Poland (2012) Belarus (2011) India (2016) Republic of Korea (2013) Benin (2013) Iran (Islamic Republic of) (2016) Russian Federation (2013) Bolivia (Plurinational State of) (2013) Israel (2016) Senegal (2013) Botswana (2016) Italy (2016) Singapore (2013) Brazil (2016) Japan (2013) South Africa (2013) Bulgaria (2013) Jordan (2016) Spain (2016) Cameroon (2013) Kenya (2016) Sri Lanka (2013) Canada (2013) Latvia (2013) Thailand (2016) Chile (2013) Malaysia (2013) Turkey (2016) China (2013) Malta (2013) Uganda (2016) Colombia (2016) Mauritius (2016) Ukraine (2014) Czech Republic (2013) Mexico (2013) United Kingdom of Great Britain and Northern Ireland (2013) Egypt (2013) United Morocco Nations Commission (2013) United on States International of America Trade (2016) Law El Salvador (2013) Namibia (2013) Venezuela (Bolivarian Republic of) (2016) Texts Convention Model Law Legislative Guide Negotiated with universal participation and reflect balance of national, regional, economic, legal and other interest. Drafted with a view to ensure compatibility with the various legal traditions. 2

3 [ texts on electronic commerce ] 3

4 Fundamental legislative principles 1. Non discrimination A communication shall not be denied validity on the sole ground that it is in electronic form. 2. Functional equivalence Purposes and functions of paper-based requirements may be satisfied with electronic communications, provided certain criteria are met. Conclusion of contract (Writing, Signature) Fundamental legislative principles (cont d) 3. Technological neutrality Equal treatment of different technologies (EDI, , Internet, instant messaging, fax, etc.) Possibility to have detailed provisions on technology requirement in the regulations implementing e-commerce legislation. Instant Messaging SMS & MMS Future Technology 4

5 MLEC is intended to facilitate commercevia the use of modern means of communications and storage of information. MLEC is based on the establishment of a functional equivalencein electronic media for paper-based concepts such as "writing", "signature" and "original". MLEC established rules for the formation and validity of contractsconcluded with electronic means and for the attribution and retention of data messages. MLES aims at bringing additional legal certainty to the use of electronic signatures. MLES establishes criteria of technical reliability for the equivalence between electronic and hand-written signatures. MLES follows a technology-neutral approach, which avoids favoring the use of any specific technical product. 5

6 ECC builds up and, in certain cases, updates the provisions of both Model Laws. ECC aims to enhance legal certaintyand commercial predictability where electronic communications are used in relation to international contracts. ECC addresses the determination of a party's location in an electronic environment; the time and place of dispatch and receipt of electronic communications and acknowledgement of receipt; the use of automated message systems for contract formation; and the criteria to be used for establishing functional equivalence between electronic communications and paper documents. ECC MLEC MLES Comprehensive general framework for the use of electronic transactions 6

7 [ Case Study ] -from consumer s point of view - Country A Law A Country B Law B Country C Law C Company A Company B Company C Id & password Mobile SMS Id & password National ID PKI 7

8 1. ID Ahreum Tim Technology-specific approach Sets specific technology; Parties are not allowed to choose Prescribes the use of a specific technology. Not technology neutral risks excluding other possibly superior technologies from entering and competing in the marketplace. Fixing requirements before a particular technology matures. Parties are not free to choose signature method they deem appropriate. Digital signature based on cryptography (PKI) 8

9 [ Problems] - from government/business point of view - Certification Service Provider Certification issues Name of private key holder Public key Identifying info Authorization 9

10 Public Key Infrastructure (PKI) Licensing Authority Issues licences for CAs Root Certification Authority Certifies CAs Certification Authority Issues certificates Registration authority Receives and verifies customer data Customer Provides data Customer Provides data Certification Authority Issues certificates Customer Provides data Customer Provides data 1. What about States that have different technical and/or legal requirements for establishment of certification authority? 2. What about States without the resources to establish and maintain root certification authority? 3. Would it be possible for parties to recognize foreign certificates (i.e. certificates issued under a foreign jurisdiction?) 4. How can business sector comply with different regulations on e-signature? 5. How will different levels of technology affect the business flow, supply chains, resources management of a company? 10

11 [ Solution ] -legal point of view - Technology neutrality - Minimalist approach Law provides minimum requirements. Follows the principle of technological neutrality. Functional equivalence is confirmed provided that certain specified functions and requirements are met. Parties are free to choose signature method they deem appropriate. Min. Requirement & Choice of ID and Password 11

12 Technology neutrality - Two-tier legislation Parties are free to choose method they deem appropriate Advanced and secured signature Any electronic signature Model Law on Electronic Commerce Article 1: Scope of application Article 2. Definition data message Article 7: Signature 12

13 Model Law on Electronic Signature Article 1: Sphere of application Article 3. Equal treatment of signature technologies Article 6: Compliance with a requirement for a signature Article 12: Recognition of foreign certificates and electronic signatures Electronic Communications Convention Preamble (fifth paragraph) Article 9: Legal recognition of electronic communications Article 11. Invitation to make offers Article 12: Use of automated message systems for contract formation 13

14 Thank You! For more information on the work of in the area of electronic commerce, or on other topics, please visit our web site Jae Sung Lee Secretary of Working Group IV on Electronic Commerce 14