Introduction to legal texts on electronic commerce

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1 Introduction to legal texts on electronic commerce Luca Castellani Legal Officer Secretariat Vienna, Austria

2 Outline 1. Benefits of e-commerce 2. E-commerce fundamentals 3. Legal agenda for e-commerce 4. Legal obstacles, barriers and uncertainties 5. Fundamental legislative principles 6. Policy approaches to electronic signatures technology 7. texts on electronic commerce

3 Benefits of e-commerce

4 E-commerce fundamentals

5 Closed networks Provide access to a limited number of pre selected customers Parties know each other Open networks Accessible to all Parties do not know each other Preliminary consent to contractual agreement Enabling legislative framework Contractual agreement

6 Actors of electronic transactions Business (B) Consumers (C) Government (G)

7 G B C C G G B B C G B C

8 Business (B) Business (B) Business (B) Consumers (C) Business (B) Government (G) In B2B transactions, parties may adjust rules to actual commercial needs, respecting the limits set by the law. Transactions with governmental entities and with consumers may require a special set of rules. Specific trade fields may also require an additional set of rules (e.g., electronic transport documents).

9 Legal agenda for e-commerce

10 Electronic transactions Rules of evidence Electronic and digital signatures Electronic payment E- government Consumer protection Privacy protection Computer crime, cyber crime Content regulation Intellectual property rights Mobile commerce

11 Examples of applications Examples of applications that may share same legislative principles of a general e-commerce law: e-payments through large banking closed systems such as SWIFT; m-payments to pay small sums through mobile phones; use of digital IDs or credit cards for authentication purposes (e.g., airport check-in); electronic single window (trade facilitation); e-procurement (increasing transparency and efficiency in private and governmental purchases).

12 Legislation should: Lessons Learned facilitate rather than regulate electronic commerce; adapt existing legal requirements; provide legal validity and raise legal certainty. In order to do so, legislation should be based on three fundamental principles: non-discrimination; functional equivalence; technological neutrality; and should allow for variation by contractual agreement.

13 Legal obstacles, barriers and uncertainties

14 Sources of legal obstacles to e-commerce: formal requirements Legal concepts based on the existence of a tangible medium: instrument, document, original, signature Legal concepts based on geographic location: delivery, receipt, dispatch, surrender

15 E-Commerce and Private Law E-Commerce creates new issues: Classification difficulties: the virtual goods/services New contract types: web hosting, web server etc. but the essence of business transactions remains the same. Conventional law has not become obsolete... On line contracts are not different from off line Medium of a transaction is generally irrelevant for the law. and nevertheless, it requires some adaptation.

16 E-commerce and private international law Applicable law uncertain Is there a valid contract? What are the terms of the contract? Choice of law clauses and the conflict between country-of-origin and country-of-destination Conflicts of jurisdiction Where can/should parties file suit? Which court can claim jurisdiction? Passive web sites Interactive web sites Choice of forum clauses and their limitations in B2C transactions

17 Recognition and evidentiary value of electronic communication If there is no Law on electronic transactions: Do the courts adopt a liberal interpretation to form requirements and evidentiary rules? Or do they take a restrictive approach? If there is a Law on electronic transactions: Does it limit the types of electronic records that are legally recognized?

18 Fundamental legislative principles

19 Non-discrimination A communication shall not be denied validity on the sole ground that it is in electronic form. Conclusion of contract (Writing, Signature)

20 Functional equivalence Purposes and functions of paper-based requirements may be satisfied with electronic communications, provided certain criteria are met.

21 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

22 Party autonomy Parties should be free to choose: whether to use (or not) electronic communications; the technology and security level appropriate for their transactions.

23 Policy approaches to electronic signatures technology

24 1. 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

25 2. 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)

26 3. Two-tier legislation Parties are free to choose method they deem appropriate Advanced and secured signature Any electronic signature

27 texts on electronic commerce

28 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.

29 International harmonization of electronic commerce law Model Law on Electronic Commerce (1996) text and list of enacting states available at: Model Law on Electronic Signatures (2001) text and list of enacting states available at: es.html United Nations Convention on the Use of Electronic Communications in International Contracts text and list of signatory states available at: n.html

30 Adopted by on 12 June MLEC is intended to facilitate commerce via the use of modern means of communications and storage of information. MLEC is based on the establishment of a functional equivalence in electronic media for paper-based concepts such as "writing", "signature" and "original". MLEC established rules for the formation and validity of contracts concluded with electronic means and for the attribution and retention of data messages. text and list of enacting states available at: rce/1996model.html

31 Model Law, articles 5 and 5 bis Information shall not be denied legal effect, validity or enforceability solely because: o it is in the form of a data message or o It is incorporated by reference Model Law, article 6 Where the law requires information to be in writing, that requirement is met by a data message if the information contained therein is accessible so as to be usable for subsequent reference.

32 Model Law, article 8 A data message can be regarded as an original document if: o There exists a reliable assurance as to the integrity of the information from the time when it was first generated in its final form, as a data message or otherwise; an o The information is capable of being displayed to the person to whom it is to be presented. Model Law, article 9 In any legal proceedings, nothing in the rules of evidence shall apply so as to deny the admissibility of a data message in evidence solely because it is a data message.

33 Adopted by on 5 July 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 handwritten signatures. MLES follows a technology-neutral approach, which avoids favoring the use of any specific technical product. MLES establishes basic rules of conduct that may serve as guidelines for assessing possible responsibilities and liabilities for the signatory, the relying party and trusted third parties intervening in the signature process.

34 Adopted by the General Assembly on 23 November 2005, entered into force on 1 March The ECC builds up and, in certain cases, updates the provisions of both Model Laws. The ECC aims to enhance legal certainty and commercial predictability where electronic communications are used in relation to international contracts. The 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 for establishing functional equivalence between electronic communications and paper documents.

35 ECC MLEC MLES Comprehensive general framework for the use of electronic transactions

36 Introduction to the uniform law of electronic signatures Luca Castellani Secretariat Vienna, Austria

37 Outline 1. Methods and technologies for electronic signatures 2. Policy approaches to electronic signatures 3. Certification service provider 4. Model Law on Electronic Signature

38 Methods and technologies for electronic signatures

39 Traditional hand-written signature Notion of authentication and signature in the paper world Authenticity as a quality Signature as a method Basic Functions of hand-written signatures Identify a person Associate that person with the content of a document Attest to signatory s intent to o to be bound by the content of a signed contract o to endorse authorship of a text Prove the signatory s presence at a given place and time Not all of these functions are intrinsic to the paper document. In particular, identification/trust may derive from other sources.

40 Electronic authentication technologies addresses, URLs, scanned images PIN codes, Smart Cards Cryptography Biometrics

41 Barriers to international use of electronic signatures Absence of common standards o Different countries may adopt different methods o Same method may be applied with different technical standards in different countries Variety of approaches and designs o Conflicting conceptual outlay of electronic signature systems o Varying role of State

42 Policy approaches to electronic signatures

43 1. 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 any signature method they deem appropriate. Min. Requirement & Choice of ID and Password

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

45 3. Two-tier legislation Parties are free to choose method they deem appropriate Advanced and secure signature Any electronic signature

46 Advantages and disadvantages of electronic authentication and signature technologies Cryptography Application: Advantage: Disadvantage: PKI (asymmetric cryptography) High security level (encryption), speed Costs; involvement of third party; unavailable in certain environments (mobile, objects); sometimes, not as secure as expected. Biometrics Application: Advantage: Disadvantage: Fingerprints, iris scan, voice recognition High security level (unique data) Not replaceable; privacy issues.

47 Advantages and disadvantages of electronic authentication and signature technologies Sharing of codes and secrets Application: Advantage: Disadvantage: PINs, Smart Cards Speed, no third party involved Risk of compromise Other methods Application: Advantages: Disadvantage: Scanned signatures, verification of address or IP addresses Ease of use, speed, low cost Low level of security

48 Certification service provider

49 Creates electronic signature Registers electronic signature Certification provider Issues certificates Confirms that electronic signature belongs to the signatory Relies and acts on the basis of electronic signature and certificate Signatory Relying party

50 Approaches to certification service providers Free market approach Any entity may offer certification services without requiring prior authorization Accreditation schemes Mandatory licensing schemes Certification authorities encouraged to seek accreditation with a public body or with a private non-for profit business sector organization. Certification authorities need to obtain a license from a governmental body. Monopoly schemes Only public bodies or notaries authorized to issue certificates: typically used for digital signatures used in governmental functions.

51 Additional issues Duties of signatories and relying parties o Should users bear risk? o Analogy to ATM cards and credit cards Liability of certification authorities o Should there be statutory limitation of liability? o Should there be statutory standards of care? Cross-certification and foreign certificates o Should the law protect local market? o On what basis should foreign certificates be recognized?

52 Public Key Infrastructure (PKI)

53 Model Law on Electronic Signature

54 Technology neutrality Article 3. Equal treatment of signature technologies Nothing in the Law, except article 5, shall be applied so as to exclude, restrict or deprive of legal effect any method of creating an electronic signature that satisfies its requirements referred to in article 6, paragraph 1, or otherwise meets the requirements of applicable law.

55 Party autonomy Primacy of party agreement on whether and how to use e- commerce techniques Parties free to choose security level appropriate for their transactions Article 5. Variation by agreement The provisions of this Law may be derogated from or their effect may be varied by agreement, unless that agreement would not be valid or effective under applicable law.

56 Functional equivalence of signature methods Legal signature requirements are met in relation to a data message if: a method is used to identify the signatory and to indicate his approval of the information contained in the data message; and that method is as reliable as was appropriate for the purpose for which the data message was generated or communicated in the light of all the circumstances, including any relevant agreement. Ex-post facto reliability of signature method: Model Law on Electronic Commerce, article 7; Model Law on Electronic Signatures, article 6; and UN Convention on the Use of Electronic Communications in International Contracts, article 9(3).

57 Presumption of reliability advanced electronic signatures Article 6. Compliance with a requirement for a signature 3. An electronic signature is considered to be reliable [ ] if: (a) (b) (c) (d) The signature creation data are [ ] linked to the signatory and to no other person; The signature creation data were, at the time of signing, under the control of the signatory and of no other person; Any alteration to the electronic signature, made after the time of signing, is detectable; and Where a purpose of the legal signature requirement for a signature is to provide assurance as to the integrity of the information to which it relates, any alteration made to that information after the time of signing is detectable.

58 Reliability standards When is a signature method as reliable as appropriate? Model Law allows to decide taking into account: o Sophistication of equipment used o Business nature o Frequency of commercial transactions between the parties o Kind and size of the transaction o Legal function of signature

59 Signatory Article 8. Conduct of the signatory 1. Where signature creation data can be used to create a signature that has legal effect, each signatory shall: (a) (b) (c) Exercise reasonable care to avoid unauthorized use of its signature creation data; Without undue delay, utilize means made available by the certification service provider [ ], or otherwise use reasonable efforts, to notify any person that may reasonably be expected by the signatory to rely on or to provide services in support of the electronic signature; [ ] exercise reasonable care to ensure the accuracy and completeness of all material representations made that are relevant to the certificate throughout its life-cycle, or that are to be included in the certificate.

60 Certification service provider Article 9. Conduct of the certification service provider. 1. Where a certification service provider provides services to support an electronic signature that may be used for legal effect as a signature, that certification service provider shall: (a) Act in accordance with representations made by it with respect to its policies and practices; (b)exercise reasonable care to ensure the accuracy and completeness of all material representations made by it [ ]; (c) Provide reasonably accessible means that enable a replying party to ascertain from the certificate: (i) The identity of certification service provider; (ii) That the signatory [ ] had control of signature creation data at the time when certificate was issued; (iii) That signature United Nations creation Commission data on were International valid Trade at or Law before that time when the certificate was issued;

61 Certification service provider Article 9. (Continued) (d) Provide reasonably accessible means that enable a replying party to ascertain [ ] from the certificate or otherwise: (i) (ii) (iii) (iv) (v) (vi) The method used to identity the signatory; Any limitation on the purpose or value for which the signature creation data or the certificate may be used; That the signature creation data are valid and have not been compromised; Any limitation on the scope or extent of liability stipulated by the certification service provider; Whether means exist for the signatory to give notice [ ]; Whether a timely revocation service is offered;

62 Relying party Article 11. Conduct of the relying party A relying party shall bear the legal consequences of its failure: (a) (b) To take reasonable steps to verify the reliability of an electronic signature; or Where an electronic signature is supported by a certificate, to take reasonable steps: (i) (ii) To verify the validity, suspension or revocation of the certificate; and To observe any limitation with respect to the certificate.

63 Cross-border use of electronic signatures Article 12. Recognition of the foreign certifications and electronic signatures 1. In determining whether, or to what extent, a certificate or an electronic signature is legally effective, no regard shall be had: (a) To the geographic location where the certificate is issued or the electronic signature created or used; or (b) To the geographic location of the place of business of the issuer or signatory. No geographic discrimination and substantive equivalence Foreign certificates and electronic signatures created or used abroad should have the same legal effect in the country if they offer a substantially equivalent level of reliability as domestic ones in the light of recognized international standards and other relevant factors.

64 Cross-border use of electronic signatures Cross recognition is an interoperability arrangement in which the relying party in the area of a PKI can use authority information in the area of another PKI to authenticate a subject in the area of the other PKI. Cross certification refers to the practice of recognizing another certification services provider s public key to an agreed level of confidence, normally by virtue of a contract. It essentially results in two PKI domains being merged (in whole or in part) into a larger domain. To the users of one certification services provider, the users of the other certification services provider are simply signatories within the extended PKI.

65 Cross-border use of electronic signatures Contractual example: PAA Based on the international standard and best practice, PAA has developed a CA Mutual Recognition Scheme. The scheme composes of a legal and a technical framework to enable electronic trading and logistic activities within the Alliance. Under these frameworks, PAA has established a certificate policy authority the Pan Asian Certificate Policy Authority ( PAA Policy Authority ) - to govern and oversee the usage of digital certificate for all electronic transactions among the PAA members. The PAA Certificate Policy Authority establishes and maintains a certificate policy the Pan Asian Certificate Policy Authority Certificate Policy ( PAA Certificate Policy ), which specifies standards and procedures to be adopted by certification authorities ( CA ) which seeks recognition from the PAA Policy Authority. The PAA Policy Authority takes into account the ability of a CA to comply with the PAA Certificate Policy in determining whether such CA is suitable for recognition as a recognized CA under PAA Mutual Recognition Scheme. (Source:

66 Cross-border use of electronic signatures Legislative example: EU e-signature directive Member States shall ensure that certificates which are issued as qualified certificates to the public by a certification-service-provider established in a third country are recognised as legally equivalent to certificates issued by a certification-service-provider established within the Community if: (a) the certification-service-provider fulfils the requirements laid down in this Directive and has been accredited under a voluntary accreditation scheme established in a Member State; or (b) a certification-service-provider established within the Community which fulfils the requirements laid down in this Directive guarantees the certificate; or (c) the certificate or the certification-service-provider is recognised under a bilateral or multilateral agreement between the Community and third countries or international organisations. Source: Article 7 (1) of the United Directive Nations 1999/93/EC Commission of on the International European Trade Parliament Law and of the Council of 13 December 1999 on a Community framework for electronic signatures (under review).

67 Cross-border use of electronic signatures Treaty solution: Where the law requires that a communication or a contract should be signed by a party, or provides consequences for the absence of a signature, that requirement is met in relation to an electronic communication if: (a) A method is used to identify the party and to indicate that party s intention in respect of the information contained in the electronic communication; and (b) The method used is either: (i) As reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or (ii) Proven in fact to have fulfilled the functions described in subparagraph (a) above, by itself or together with further evidence. Source: Article 9(3) of the United Nations Commission Convention International the Use Trade of Electronic Law Communications in International Contracts, 2005.

68 Future of electronic signatures: identity management? Identity management (IdM) systems aim at enabling identity portability across different applications by facilitating the secure exchange of identity credentials and eliminating redundant operations. They may perform the identification, authentication and authorization of the user by a selective use of shared identity attributes, thus potentially reducing the proliferation of electronic identities. In their simplest form, IdM systems feature three actors: the subject (i.e., the physical or legal person being identified), the identity provider, and the relying party. The identity provider may act as a trusted third party, receiving, storing, managing, redistributing and possibly aggregating the information submitted by subjects and relying parties. Challenge: some jurisdictions are developing IdM systems based on Government-run national IdM schemes, others are relying on private sector efforts.

69 Electronic signatures and single window facilities Technical specifications for national single window facilities usually rely on PKI systems due to security concerns. This choice may hinder exchange of documents with the private sector, which is useful to improve data quality. This choice also creates difficulties in cross-border recognition of electronic signatures. National PKI may be difficult and expensive to design and maintain, especially for smaller and developing countries. Need to achieve flexibility without missing on security. Need to accommodate the use of mobile devices for submission of data, as well as the possibility for objects to authenticate themselves.

70 The United Nations Convention on the Use of Electronic Communications in International Contracts Luca Castellani Legal Officer Secretariat Vienna, Austria

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

72 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 cumbersome.

73 Increase uniformity in e-commerce legislation The Model Law on Electronic Commerce, 1996 and the Model Law on Electronic Signatures, 2001 received a large number of enactments. However, there are variations in their enactment due to their soft law nature. Goal of the Electronic Communications Convention: to reinforce the level of uniformity in the implementation and application of uniform texts on e-commerce. The Convention establishes a common legislative core for cross-border transactions.. Particularly important for electronic signatures.

74 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).

75 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).

76 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.

77 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.

78 Facilitate cross-border recognition of electronic signatures Facilitates cross-border recognition of electronic signatures based on the substantive equivalence standards: method used is as reliable as appropriate for the purpose for which the electronic communication was generated or communicated in the light of all the circumstances, including any relevant agreement; Non-repudiation of effective electronic signature: method used is proven in fact to have fulfilled the functions of identifying the party and proving the party s intention in respect of the information contained in the message, by itself or together with furtherevidence.

79 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.

80 Colombia s benefits from adoption of the ECC Colombia is a signatory to the Electronic Communications Convention. It has already adopted electronic transactions legislation based on the Model Law on Electronic Commerce. It has recently amended legislation in order to be more technology-neutral with respect to electronic signatures. These amendments were done in order to comply with Free Trade Agreements obligations. Adopting the Convention would further strengthen its integration in the regional and global cyber-economy.

81 Status of adoption of the Convention. Convention is useful if widely adopted and used So far, more used as a model law than as a treaty. 18 signatories (including China, Russia) 3 State parties (Dominican Republic, Honduras, Singapore) Entry into force: 1 March 2013 Publicly committed to accession: Australia, Thailand, Russia. Enacted domestically: Ghana, Guatemala, Qatar, Rwanda, San Marino, Trinidad and Tobago, Viet Nam, Zambia... Regional endorsements and de facto adoption: EAC, ASEAN, ESCAP, etc.

82 Thank You! For more information on the work of in the area of electronic commerce, please visit

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