Presentation js lee

UNCITRAL United Nations Commission on International Trade Law

Exploratory seminar on e-Signatures

for e-Business Transactions

South Mediterranean Region

Jae Sung LEE

Legal Officer, UNCITRAL

Office of Legal Affairs

United Nations


When and why was UNCITRAL established?


• 60 member States elected by the General Assembly

considering geographical regions and levels of economic

development

•Non-member States participate as observer States and

no difference in deliberation

• Intergovernmental organizations as well as

international non-governmental organizations

participate as observers

•Term of 6 years with half (30) of the members reelected

or replaced every 3 years (elections to be held on Nov 12,

2012)

Composition of UNCITRAL


Organization of work

The Commission

Working Groups

The Secretariat


United Nations Org StructureUnited Nations System


• Two sessions per year alternating between New York

(spring) and Vienna (fall)

6 Working Groups

I. Micro, medium & small-sized

enterprises

I. Micro, medium & small-sized

enterprisesII. ArbitrationII. Arbitration

III. Online Dispute

Resolution

III. Online Dispute

Resolution

IV. Electronic Commerce

IV. Electronic Commerce

V. Insolvency Law

V. Insolvency Law

VI. Security Interests

VI. Security Interests

The Commission

Working Groups

The Secretariat


UNCITRAL Texts

• 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 including Islamic law

• Methods operate at different levels and involve different

types of compromise or acceptance

• Move from a hard law to soft law

Convention Model LawLegislative

Guide


UNCITRAL Texts

• Conventions - Designed to unify law by establishing

binding legal obligations

• Model Law - A legislative text recommended to States for

enactment as part of their domestic law

• Legislative Guide - A set of principles and legislative

recommendations for legislators to consider in their

enactment of domestic law

Convention Model LawLegislative

Guide


Examples of Conventions


Examples of Model law


Examples of Legislative Guides


United Nations Commission on International Trade Law

UNCITRAL texts: Electronic Commerce

UNCITRAL


UNCITRAL Texts on Electronic Commerce

• 1996 Model Law on Electronic Commerce (MLEC)

• 2001 Model Law on Electronic Signatures (MLES)

• 2005 United Nations Convention on the Use of

Electronic Communications in International

Contracts (ECC)

• 2007 Promoting confidence in electronic

commerce: legal issues on international use of

electronic authentication and signature methods

�Provides comprehensive legal framework for

electronic transactionsMore information available at

http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerc

e.html


UNCITRAL Texts on Electronic Commerce

• Provides comprehensive legal framework for

electronic transactions

• Based on the following underlying principles:

�Non-discrimination

�Functional equivalence

�Technological neutrality

�Party autonomy


UNCITRAL Model Law on E-commerce


(1) Where the law requires a signature of a person, that

requirement is met in relation to a data message if:

(a) a method is used to identify that person and to indicate that

person’s approval of the information contained in the data

message; and

(b) 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.

(2) Paragraph (1) applies whether the requirement therein is in the

form of an obligation or whether the law simply provides

consequences for the absence of a signature.

Article 7. Signatures


Legislation implementing the MLEC has been adopted in: Australia (1999), Bahrain (2002),

Brunei (2000), Canadian territories, China (2004), Colombia (1999), Dominican Republic (2002),

Ecuador (2002), France (2000), Guatemala (2008), India (2000), Ireland (2000), Jamaica (2006),

Iran (2004), Jordan (2001), Mauritius (2000), Mexico (2000), New Zealand (2002), Pakistan

(2002), Panama (2001), Philippines (2000), Republic of Korea (1999), Qatar (2010), Saudi Arabia

(2007), Singapore (1998), Slovenia (2000), South Africa (2002), Sri Lanka (2006), Thailand (2002),

UAE (2006), certain USA States, Venezuela (2001),Vietnam (2005) and few others.


(a) “Electronic signature” means data in electronic form in, affixed

to or logically associated with, a data message, which may be used

to identify the signatory in relation to the data message and to

indicate the signatory’s approval of the information contained in

the data message;

Article 2. Definitions

Nothing in this 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 the requirements

referred to in article 6, paragraph 1, or otherwise meets the

requirements of applicable law.

Article 3. Equal treatment of signature technologies


1. Where the law requires a signature of a person, that requirement

is met in relation to a data message if an electronic signature is

used that is as reliable as was appropriate for the purpose for

which the data message was generated or communicated, ….

3. An electronic signature is considered to be reliable … if:

(a) The signature creation data are, within the context in which they

are used, linked to the signatory and to no other person;

(b) The signature creation data were, at the time of signing, under

the control of the signatory and of no other person;

(c) Any alteration to the electronic signature, made after the time

of signing, is detectable; and

(d) Where a purpose of the legal 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.

Article 6. Compliance with a requirement for signature


Legislation implementing the MLES has been adopted in: Barbados (2001),

Cape Verde (2003), China (2004), Costa Rica (2005), Ghana (2008), Guatemala

(2008), India (2009), Jamaica (2006), Mexico (2003), Nicaragua (2010),

Paraguay (2010), Qatar (2010), Rwanda (2010), Saint Lucia (2011), St. Vincent

and the Grenadines (2007), Saudi Arabia (2007), Thailand (2002), Trinidad and

Tobago (2011), UAE (2006), Viet nam (2005) and Zambia (2009).


Electronic Communications Convention


Entry into force of the ECC

• Entry into force on 1 March 2013

• States parties: Dominican Republic, Honduras &

Singapore

• 16 other signatories (Central African Republic, China,

Colombia, Iran, Lebanon, Madagascar, Montenegro,

Panama, Paraguay, Philippines, Republic of Korea,

Russia, Saudi Arabia, Senegal, Sierra Leone, Sri Lanka)

• Australia, Thailand, Sri Lanka have declared intention

to adopt

• Other States have adopted substantive provisions of

the ECC domestically


3. 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.

Article 9. Form requirements


Promoting confidence in electronic commerce

(2007)

• Analyzes main legal issues regarding

�Signatures and authentication methods

�Cross-border use of electronic signatures and

authentication methods

�Part 2 focuses on international use

of digital signatures under a PKI

(not a recommendation)


Current agenda of Working Group IV

• Draft provisions on electronic transferable

records (electronic cheques, promissory notes,

bills of lading …)

• Identity management considered as a sub-topic

• More information available at http://www.uncitral.org/uncitral/en/commission/working_groups/4Elec

tronic_Commerce.html


UN CEFACT Recommendation 14

• UN Centre for Trade Facilitation and Electronic

Business – under the auspices UN Economic

Commission for Europe

• Revision of the outdated recommendation 14 on

authentication of trade documents

• Revised draft finalized and under public review

• Recommends (i) removal of signature requirement

(ii) electronic authentication methods of equal

status and (iii) regular review.


For more information, please visit the UNCITRAL

web site @ http://www.uncitral.org/

or e-mail me at [email protected]

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