dr. diganta biswas school of law christ university, bangalore
TRANSCRIPT
Presentation- 4UNCITRAL Model Law
onE- Commerce
Dr. Diganta BiswasSchool of Law
Christ University, Bangalore
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UNCITRAL Model Law on E- commerce
The United Nations Commission on International Trade Law (UNCITRAL)
Model Law on Electronic Commerce (MLEC) was promulgated in 1996 (and
amended in 1998) to assist countries in the framing of legislation which would
enable and facilitate electronic commerce and electronic governance in the world.
The MLEC was the first legislative text to adopt the fundamental principles of non-
discrimination, technological neutrality and functional equivalence that are widely
regarded as the founding elements of modern electronic commerce law. The
principle of non-discrimination ensures that a document would not be denied legal
effect, validity or enforceability solely on the grounds that it is in electronic form.
The principle of technological neutrality mandates the adoption of provisions that
are neutral with respect to technology used.
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Dr. Diganta Biswas, School of Law, Christ University, Bangalore.
Dr. Diganta Biswas, School of Law, Christ University, Bangalore.
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It may be noted that certain provisions of the MLEC were amended by the Electronic Communications
Convention, 2005 (United Nations Convention on the Use of Electronic Communications in
International Contracts, 2005) in light of recent electronic commerce practice. This Convention is
intended to strengthen the harmonization of the rules regarding electronic commerce and
foster uniformity in the domestic enactment of UNCITRAL model laws relating to
electronic commerce, as well as to update and complement certain provisions of those
model laws in light of recent practice. Finally, the Convention may provide those
countries not having yet adopted provisions on electronic commerce with modern,
uniform and carefully drafted legislation.
Other related Documents in regard to E- Commerce:
UNCITRAL Model Law on Electronic Signatures (2001)
United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea
(New York, 2008) (the "Rotterdam Rules")
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Features of this model law-This model law- This Law applies to any kind of information in the form of a data message used in
the context of commercial activities; establishes rules and norms that validate and recognize contracts formed
through electronic means; sets rules for forming contracts and governing electronic contract performance; puts electronic communications on par with traditional paper-based modes
of communication in order to fostering efficiency in international trade; defines the characteristics of valid electronic writings and of an original document; provides for the acceptability of electronic signatures for legal and commercial
purposes; and supports the admission of computer evidence in courts and arbitration proceedings.
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UNCITRAL Model Law Salient Features:
Between and among the parties involved in generating, sending, receiving, storing
or otherwise processing data messages, and except as otherwise provided, the
provisions of chapter III i.e. regarding the communication of data messages may be
varied by agreement. However, such variation does not affect any right that may
exist to modify by agreement any rule of law regarding the application of legal
requirements to data messages. (Article 4)
Information shall not be denied legal effect, validity or enforceability solely on the
grounds that it is referred to in that data message. (Article 5)
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. (Article 6)
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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 (discussed in Art. 8.1a and 3a) 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.
(Article 7)
(Article 8) Where the law requires information to be presented or retained in its
original form, that requirement is met by a data message if:
(a) 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; and
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(b) where it is required that information be presented, that information is capable
of being displayed to the person to whom it is to be presented.
(3) For the purposes of subparagraph (a) of paragraph (1):
(a) the criteria for assessing integrity shall be whether the information has
remained complete and unaltered, apart from the addition of any endorsement
and any change which arises in the normal course of communication, storage
and display; and
(b) the standard of reliability required shall be assessed in the light of the
purpose for which the information was generated and in the light of all the
relevant circumstances.
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Under Article 9(1), In any legal proceedings, there should not be any denial
regarding the admissibility of a data message in evidence:
(a) on the sole ground that it is a data message; or,
(b) if it is the best evidence that the person adducing it could reasonably be
expected to obtain, on the grounds that it is not in its original form.
Under Art. 9(2) Information in the form of a data message shall be given due
evidential weight.
In assessing the evidential weight of a data message, regard shall be had to the
reliability of the manner in which the data message was generated, stored or
communicated, to the reliability of the manner in which the integrity of the
information was maintained, to the manner in which its originator was identified,
and to any other relevant factor.
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Under Art. 10(1) Where the law requires that certain documents, records or
information be retained, that requirement is met by retaining data messages,
provided that the following conditions are satisfied:
• (a) the information contained therein is accessible so as to be usable for subsequent
reference; and
• (b) the data message is retained in the format in which it was generated, sent or
received, or in a format which can be demonstrated to represent accurately the
information generated, sent or received; and
• (c) such information, if any, is retained as enables the identification of the origin
and destination of a data message and the date and time when it was sent or
received.
However, the provision does not extend to any information the sole purpose of
which is to enable the message to be sent or received.
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Key provisions of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce:
The MLEC establishes rules for the
formation and validity of contracts concluded by electronic means,
attribution of data messages,
acknowledgement of receipt and
determination of the time and place of dispatch and receipt of data messages.
Moreover, part II of the MLEC, dealing with electronic commerce in connection
with carriage of goods, has been complemented by other legislative texts, including
the United Nations Convention on Contracts for the International Carriage of
Goods Wholly or Partly by Sea (the "Rotterdam Rules") and may be the object of
additional work of UNCITRAL in the future.
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Important Provisions under the 2005 Convention:
The Convention features the followings-
The Convention applies to all electronic communications exchanged between parties
whose places of business are in different States when at least one party has its place of
business in a Contracting State. (Art. 1).
Contracts concluded for personal, family or household purposes, such as those relating
to family law and the law of succession, as well as certain financial transactions,
negotiable instruments, and documents of title, are excluded from the Convention's
scope of application (Art. 2).
The Convention sets out criteria for establishing the functional equivalence between
electronic communications and paper documents, as well as between electronic
authentication methods and handwritten signatures (Art. 9).
The Convention defines the time and place of dispatch and receipt of electronic
communications. (Art. 10).Sunday, December 01, 2013
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Communications are not to be denied legal validity solely on the grounds that they
were made in electronic form (Art. 8).
The enforceability of contracts entered into by such systems, including when no
natural person reviewed the individual actions carried out by them (Art. 12).
A proposal to conclude a contract made through electronic means and not
addressed to specific parties amounts to an invitation to deal, rather than an offer
whose acceptance binds the offering party, in line with the corresponding provision
of the CISG (Art. 11).
Provides remedies in case of input errors by natural persons entering information
into automated message systems (Art. 14).
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