When was UNCITRAL established? And why? · 5 UNCITRAL United Nations Commission on International...

1

UNCITRAL United Nations Commission on International Trade Law

The significance of technology neutrality

in support of trade facilitation

Jaesung Lee (Secretary of Working Group IV

on Electronic Commerce)

Ahreum Lee (Former Legal Officer)

UNCITRAL Secretariat

Vienna, Austria

6 June 2013


When was UNCITRAL established? And why?

2


Composition of UNCITRAL

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) Morocco (2013) United States of America (2016) El Salvador (2013) Namibia (2013) Venezuela (Bolivarian Republic of) (2016)


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.

Convention Model LawLegislative

Guide

3


[ UNCITRAL texts on electronic commerce ]


4


1. Non discrimination

• A communication shall not be denied validity on the sole ground

that it is in electronic form.

Conclusion of contract

(Writing, Signature)

Fundamental legislative principles

2. Functional equivalence

• Purposes and functions of paper-based requirements may be

satisfied with electronic communications, provided certain criteria

are met.


3. Technological neutrality

• Equal treatment of different technologies (EDI, e-mail, Internet,

instant messaging, fax, etc.)

• Possibility to have detailed provisions on technology requirement

in the regulations implementing e-commerce legislation.

Email Instant Messaging

SMS & MMS

Future Technology

Fundamental legislative principles (cont’d)

5


• 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.


• 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.

6


•ECC builds up and, in certain cases, updates

the provisions of both Model Laws.

• ECC aims to enhance legal certainty and

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.


Comprehensive general framework for the use of electronic transactions

MLESMLES

ECCECCMLECMLEC

7


[ Case Study ]- from consumer’s point of view -


Company

B

Company

A

Company

C

Mobile SMS

PKIId & password

Country B

Law B

Country A

Law A

Country C

Law C

Id & password

National ID

8


TimTimTimTimAhreumAhreumAhreumAhreum

5.

3.

2.

2 3 4 0

5 8

1.

ID

4.

6.

2 3 4 0 2 5


Sets specific

technology;Parties are not allowed to choose

Technology-specific approach

Digital signature based on cryptography (PKI)

• 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.

9


[ Problems]- from government/business point of view -


Certification Service Provider

Name of private key holder Public

keyIdentifyinginfo

Authorization

issues

Certification

10


Public Key Infrastructure (PKI)

Licensing AuthorityIssues licences for CAs

CustomerProvides data


Registration authorityReceives and verifies customer data

Certification AuthorityIssues certificates



Certification AuthorityIssues certificates

Root Certification AuthorityCertifies CAs


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?

11


[ Solution ]- legal point of view -


Technology neutrality - Minimalist approach

Min. Requirement & Choice of ID and Password

• 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.

12


Technology neutrality - “Two-tier” legislation

Advanced and secured signature

Parties are free to choose method they deem appropriate

Any electronic signature


Model Law on Electronic Commerce

Article 1: Scope of applicationArticle 2. Definition “data message”Article 7: Signature

13


Model Law on Electronic Signature

Article 1: Sphere of applicationArticle 3. Equal treatment of signature technologiesArticle 6: Compliance with a requirement for a signatureArticle 12: Recognition of foreign certificates and electronic signatures


Electronic Communications Convention

Preamble (fifth paragraph)Article 9: Legal recognition of electronic communicationsArticle 11. Invitation to make offersArticle 12: Use of automated message systems for contract formation

14


Thank You!

For more information on the work of UNCITRAL in the

area of electronic commerce, or on other topics, please

visit our web site

http://www.uncitral.org/

Jae Sung Lee

Secretary of Working Group IV on Electronic Commerce

[email protected]

When was UNCITRAL established? And why? · 5 UNCITRAL United Nations Commission on International...

Documents

Transcript of When was UNCITRAL established? And why? · 5 UNCITRAL United Nations Commission on International...