UNITED NATIONS COMMISION ON INTERNATIONAL TRADE LAW (UNCITRAL) Current issues on electronic contracting José Angelo Estrella Faria Legal Officer UNCITRAL.

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Presentation transcript:

UNITED NATIONS COMMISION ON INTERNATIONAL TRADE LAW (UNCITRAL) Current issues on electronic contracting José Angelo Estrella Faria Legal Officer UNCITRAL secretariat

Models of e-Contracting –According to environment Closed networks (mostly EDI-based) –SWIFT –Supply Chains Open networks (Internet and WWW) –Trade Portals –Direct Internet Sales –According to participants Business to business (B2B) Government to business (G2B) Business to consumers (B2C)

Basic Legal Requirements for e-Contracting Legal measures to enhance trust –Confidence in e-commerce depends on the legal system recognizing the legal value of electronic contracts and ensuring their enforcement (both B2B and B2C). –Law must accommodate party autonomy (particularly in B2B). –Adherence to modern legal standards (IP rights, privacy protection) Legal measures to facilitate performance –Developing an online payment system involves complex issues of security, liability & taxation. –At a minimum, banking laws must enable payment via credit/debit-card.

E-Contracting (B2B): Contract Formation in the Electronic Age Location of parties: Special location criteria for cyberspace? –Location of information systems –Domain names and electronic addresses –The risk of duality paper/electronic Offers and invitations to treat –Traditional notion of “offer” –Interactive applications: web shopping –On-line auctions

E-Contracting (B2B): Contract Formation in the Electronic Age Automated systems: attribution and error –Computers as “electronic agents” –Errors Human error Computer-generated errors or faulty software Contract content –Unexpected terms –“Battle of the forms” Availability of contract terms

E-Contracting (B2B) and trade documents: negotiating with paper documents Transfer of rights in tangible goods and other rights –Transfer by consent –Transfer by registration –Transfer by physical hand-over –Transfer by constructive possession Security interests in tangible goods and intangible assets –Perfection by possession –Perfection by registration –Other methods

E-Contracting (B2B) and trade documents: creating electronic equivalents General legal obstacles –“Writing”, “signature”, “original” –Registry function: authority, liability and privacy –Meeting legal requirements on effective or constructive possession Special issues relating to documents of title and negotiable instruments –Negotiability –Singularity

E-Contracting (B2B): Examples of electronic substitutes for documents of title and negotiable instruments Electronic registry of real estate transactions (Canada) Dematerialized securities (worldwide) Electronic warehouse receipts (USA) Electronic equivalents for paper bills of lading (Bolero) Attempts to develop an electronic equivalent for negotiable instruments (USA)

Related UNCITRAL Projects Omnibus convention On-line dispute resolution

UNITED NATIONS COMMISION ON INTERNATIONAL TRADE LAW (UNCITRAL) For more information on the work of UNCITRAL in the are of electronic commerce, or on other topics, please visit our web site Thank you for your attention!