David Dean Ellis LL.M MBA BA
The introduction of technological advancements in the trade industry today constitutes the age old conundrum of how governments existing in an age where literally every week brings new and inventive technologies for communication and access keep pace with legal systems which often resemble stagnant pools so ancient as to be irrelevant to the public who they are supposed to regulate. Papaioannou refers to the current legal systems as “anachronistic, slow and unfair” and in the area of trade where information systems are of primary importance, legal barriers represent not only an impediment to commerce and the smooth functioning of society in general but also a substantive barrier to the integration of states into a changing world market.
The background to this problem begins with the traditional methods by which trade was conducted, that being paper based documents which, by and large served their purpose in a time where shipping arrangements were considerably slower, restricted and less complex as they are today. In the modern age, traditional paper forms for trading systems account for between 5-10% of the value of world trade, with 5 billion documents exchanged annually and international air transport paper trading handling costs averaging around $1.5 billion USD annually. Logistically this represents waste which in business terms should theoretically be eliminated if not for the barriers presented by slow acceptance of less costly alternatives.
This column intends to examine the advancements made in the improvement of trade in communication and information systems and the ways in which legal adjustments both assist and retard the integration of speedier electronic models of communication over traditional paper based systems, which are quickly becoming a burden in terms of time and costs to world trade. In order to fully develop this theory an examination of the legal infrastructure pertaining to maritime, air and road transport will be attempted to demonstrate that electronic documentation is no longer an options which today’s governments and industries can afford to ignore.
The Hague convention, its additional protocol The Hague-Visby rules and the final amendment to its clauses on special drawing rights for example set the basic rules for maritime trade in the 20th century. Article 3 of this convention required the carrier or operator of a ship to issue to the shipper a bill of lading “among other things” which would carry the leading marks which were necessary for the identification of the goods in terms of quantity, description and condition.
Article 6, made it clear that unless damage to the goods has occurred the bill of lading issued to the persons taking charge of delivery should serve as evidence of the performed contract of carriage and delivery to the buyer and that in the event of damage notice was to be given in writing. The United Nations Convention on the Carriage of goods by sea signed in 1978 however constitutes the first mention of alternative means of documentation to be used in sea trade. Article 1 of the convention stated that writing may include telex and telegram, while article 14 stipulates that the signature on the bill of lading may be printed in facsimile perforated or made by any other electronic means.
Finally, the United Nations Convention on Contracts for the International Carriage of goods Wholly or partly by sea signed in 2009 departed from the other conventions in that it embraced and encouraged the use of electronic documents. Article 3 of the convention stipulated that all types of trading communication which included notices, agreements, consents and declarations were still considered to be writing if they were in electronic form while article 8 stated that anything that is to be recorded on a transport document under the convention may be recorded in an electronic form under the condition that this recording is at the consent of both the carrier and the shipper.
From these international conventions concerning sea trade a number of observations can be made:
- The increase of the incorporation of language friendly to electronic documentation correlated to the passage of time, that is, the increase in global trade and advancements to the efficiency of the transport industry necessitated that shipping arrangements and documentation also had to become more efficient and the result has been reflected in the language of international conventions and treaties.
- Despite this necessity the international legal community still harbored resistance to the full acceptance of electronic documentation in sea trade. The wording of the article 8 of the 2009 agreements which was most inclusive of the concept of electronic documentation requires both the shipper and the carrier to be in agreement before electronic documentation can be used. This undoubtedly had a lot to do with the anticipation of legal uncertainty associated with electronic documentation.
- This requirement to agree to electronic documentation did little to advance the movement towards full acceptance of electronic documentation since clearly under the rules of the 2009 convention a greater degree of legal certainty could be accessed from the use of traditional paper form contracts.
Air Transport and Electronic documentation.
The legal bases concerning International Air transport however contain less complications. The Convention for the Unification of Certain Rules Relating to International Transportation by Air signed in 1929 (Warsaw Convention) contained specific clauses directed towards the limitation of liability in air travel for carriers. Article 3 (1) of the convention required carriers to issue a passenger ticket to customers which suggests a paper ticket. Article 4 requires the same for a baggage ticket and articles 6, 8, and 9 concern the production of an air consignment note (ACN) for the transportation of goods via air. All of these articles however state categorically that carriers who accepted passengers, luggage or goods without the proper documentation barred the carrier to protection from unlimited liability under the act.
Two additional protocols to the original convention signed in Guatemala City in 1971 and Montreal in 1975 introduced the concept of “any other means” of preserving a record of the information concerning the particulars of the air voyage. The Montreal Protocol specifically concerned the provision of an air waybill for the transport of cargo by air. Article 5 (2) of that amendment allows for “any other means” of recording the particulars of the air voyage contract but makes the stipulation that if other means are used it should be at the consent of the consignor and that the carrier should produce a receipt (paper) containing the particulars of the transaction at the behest of the consignor.
Once again a few observations should be made concerning air transportation and electronic documents:
- The gradual progression from the original Warsaw Convention towards the inclusion of what was termed “other means” of documentation have always come with reservations. Specifically, the need for consent on the part of both parties to an agreement in order to legitimize electronic communication means effectively that the authors considered electronic documentation as in the case of bills of lading to be not as legitimate as their paper versions.
- The provision given under section 3 which requires a carrier to revert to paper documentation in the event that other electronic means of presenting information is not acceptable to the points of transit or destination means that the authors of the Montreal protocol were aware that it would be sometime before all points of transit and destination had the capabilities to accept such documentation. This has the effect of slowing the full acceptance of electronic documentation since the provision offers a safety net for countries who are opposed or not keen to make investment into incorporating electronic documentation in local trade. 
Electronic documentation in Road and multimodal transport
Developments in the areas of multimodal and road transport have also seen a greater acceptance of electronic documentation. The United Nations Conference on Trade and Development’s (UNCTAD), Convention on International Trade Multimodal Transport of Goods (Multimodal Transport Convention) signed in 1980 for instance states specifically in Article 1 (10) that reference to “writing” in the convention means telegram or telex. Article 5 (3) reiterates that the signature on the multimodal transport document may be,
“…in handwriting, printed on facsimile, perforated, stamped, in symbols, or made by any other mechanical or electronic means,”
The Inter-American Convention on International Carriage of Goods by Road (Inter-American Convention) adopted in 1989 stated that rules concerning bills of lading, transport documents or consignment notes may be produced “if the shipper so agrees” using any mechanical or electronic means that recover the information relevant to the voyage.
A similar qualification is required in the Convention on the Liability of Operators of Transport Terminals in International Trade (Terminal Operators Convention) signed in 1991 which requires operators of terminals of trade to issue documentation regarding their taking possession and handling goods for a set period of time.
Article 3 of the Convention states,
“a document referred to in paragraph (1) may be replaced by an equivalent electronic data interchange message,’
and in reference to signatures,
“The signature referred to in paragraph (1) means a hand-written signature, its facsimile or an equivalent authentication effected by any other means,”
indicating that the authors thought it prudent that “equivalence” with regard to electronic documentation should be expressly stated.
The same is true of the Convention on a Common Transit Procedure between the EEC and EFTA countries (EEC/EFTA Transit Convention) which is regional in scope but offers a foundation for the determining of functional equivalence between electronic and paper documentation. Article 3 (1) and (2) allow for the request of electronic documentation and signatures to be in electronic form on the following stipulation,
“This facility shall be granted only if the technical and administrative conditions laid down by the competent authorities are met,”
issues concerning the inclusion of electronic documentation in today’s international trade.
Bill of lading
In International commerce the bill of lading serves three main functions which are:
- Evidence that a contract between carrier and shipper exists including the condition of the goods on board.
- Proof of the performance of said contract.
- The transfer of ownership and title of the goods from one party to another.
In the context of electronic commerce however this provides a problem as the functions performed by this document are not universally accepted in its electronic form. In many jurisdictions such as several Caribbean nations for example, original versions of this document are required in order for there to be a transfer of possession. These restrictions are embedded into outdated laws and are often found in countries which have not yet integrated more sophisticated electronic authentication systems into their trading infrastructure.
The issues with the Bill of Lading directly affect the validity of CIF contracts specifically, with regard to the concept of transferability. The CIF contract requires the seller to procure insurance on behalf of the buyer however the buyer bears the risk of loss from the moment the goods are on board. The seller then uses a Bill of Lading as proof of delivery and a transfer of title. This clearly becomes an issue when it is the electronic copy of a bill of lading is not accepted on the other end as valid. The legal uncertainties of this kind of situation were addressed in the 1990 edition of Incoterms which allowed for the use of E.D.I messages provided that both parties to the C.I.F contracts had agreed to communicate electronically.
With the number of electronic platforms in use today in international trade, a standardized method of communication has yet to be developed among the various parties. Specifically, the languages involved in Electronic Data Interchange (E.D.I) messages need to be readily assimilated into the computers on both ends of a transaction and at present there still exists a number of different languages. The world standard for E.D.I messages at present is the UN/EDIFACT developed by the United Nations Centre for Trade Facilitation and Electronic business, however the adoption of this standard is optional with countries such as the United States still choosing to use the ANSI X12 standard in their international trade.
Harmonization of international rules and regulations with regard to Trade has become a rather tedious process for a number of reasons.
First, there is the problem of the language of some of the rules included in treaties and model laws. An example can be seen in the experience of the European Union where harmonization efforts have produced both negative and positive benefits. The process of harmonization through the use of European directives for examples ensures more predictability between and around member states trade processes especially in the areas concerning electronic commerce. The subsidiarity principle, however causes the opposite effect since the directive itself only acts as model instrument to affect the intent of Union and does not govern the particularities involved in assimilating the instrument into national law. States therefore have considerable leeway to adjust and interpret directives in ways which more readily fit into their national systems and this has the potential to generate uncertainty in international trade. This is of particular importance when considering the argument on whether the European Union should regulate the rules concerning commercial arbitration. Authors such as Engelmann and Gaffney suggest that this measure is not necessary as there exists International standards for commercial arbitrations which are adequate. This perspective however does not discount the fact that movement towards more predictability in legal outcomes across borders is necessary for the promotion of regional trade and that member states within the European Union who choose to apply UNCITRAL’s models laws concerning arbitration for example may do so with adjustments and reservations.
The use of electronic documents today
Developments in International legislation
As a means of combatting the obstacles to the use of electronic documentation in International Trade law the United Nations Commission on International Trade Law (UNCITRAL) created three important pieces of model law so that member states may have a foundation to pattern their efforts in moving to a more electronic based trading system.
The Model law on Electronic commerce of 1996 for instance provides member states with a template for converting a traditional paper documentation to a more accessible electronic based system through an approach which emphasizes functional equivalence.
Articles 5 and 6 of the law for instance sets the parameters and standards for an electronic writing if it is to be considered a legal document while decreeing that such documents which meet the standards should not be discriminated against or denied legal effect. Article 9 also separately takes into account the admissibility of such documents in legal proceedings.
Articles 7 and 10 concern themselves specifically with the legal requirements concerning the use of signatures and the the required time which documents should be kept and in what order for referential uses.
Another development which acts as an adjunct to this model is the Model Law on Electronic Signatures which deals with the the use and acceptance of electronic signatures. This model law was required as a major obstacle to the acceptance of electronic documentation has been the lack of adequate methods of authenticating transactions between parties. Articles 4, 5 and 6 of the convention deal with the practical aspects of setting up authentication systems whereas article 8 provides a basis for attributing responsibility of the party using an electronic signature to “exercise reasonable care” to ensure that the signature system is protected from unauthorized use.
Articles 9, 10 and 11, specifically deal with the regulation of any third party certification service providers who provide support to an electronic signature throughout its life cycle. These clauses also create a standard for what constitutes trustworthiness in certification and authentication systems and the responsibilities and behaviors of persons who rely on these signatures making the end party liable for any failure to take steps to verify the reliability of an electronic signature.
Article 12 of the model law is proactive in prohibiting geographic discrimination in the recognition of electronic signatures, establishing that electronic signatures issued locally in a member state will have the same validity of signatures outside the state as long as the signature systems are of the standards decreed within the law.
The UN Convention on the Use of Electronic Communications in International Contracts represents the most recent binding legislation concerning electronic commerce and was developed as a result of international need for harmonization of electronic documentation procedures within member states. Articles 1 and 2 of the convention establishes the operating principles upon which the convention is based while restricting its application to commercial contracts which include bills of lading, consignment notes and warehouse receipts in the cases of road transportation.
Section 11 however allows parties engaged in a transaction to exclude themselves from applying the convention by mutual agreement, a clause which is reminiscent of the language used in earlier agreements to allow for parties to choose not to use Electronic documentation in their transactions.
Other developments supporting the acceptance of electronic documents.
The Bills of Lading Electronic Registry Organization(BOLERO) founded launched in 1999 was a pilot project funded initially by the European Union. This project was initially created to tackle the technical problems associated with the transition from paper based systems. To date this organization offers online solutions for all types of commercial transactions including insurance, customs, and transport documents. The software produced supports open internet formats such as XML and EDIFACT which ensures its operability and adaptability to any organization and country in the world.
In comparison EssDoCS is a private company which similar to the BOLERO project specializes in producing customer-oriented solutions for international trade. To date the company boasts more than 18,000 customers in 168 countries and 36 banking groups who utilize their CargoDocs platform to digitize their trade operations, finance and logistics. The success of this company has been largely due to the progressively friendly legal climate combined with the necessity to reduce global trade costs. The Dominican Republic became the 75th nation to use this system in January 2017 to execute a shipment from The United States to the Dominican Republic which due to the short nature of the voyage required faster infrastructure in the way of trade documentation. The use of the ESS cargo platform ensured that the documents were transferred and processed within 3 days.
Regional Trade Co-operatives between nations has also been a major factor or force in the support for electronic commerce and documentation. This is because regional cooperative markets are incentivized to find quicker and more efficient solutions to trade barriers than on an international level. The Directive on Electronic Commerce passed by the European parliament in 2000 for example states as it’s mandate in Article 1,
“The European Union is seeking to forge ever closer links between the States and peoples of Europe, to ensure economic and social progress. The development of information society services within the area without internal frontiers is vital to eliminating the barriers which divide the European peoples.”
The directive required member states to implement the directive by amending their laws within 18 months eliminating barriers to electronic commerce. The directive also required member states to impose requirements in the form of legal infrastructure for the conclusion of electronic commerce to assist consumers in avoiding technical errors.
The overall result of the directive has been that as of 2008 all 27 members of the European Union implemented aspects of the directive into their national laws including Turkey and Croatia who are in the process of applying for EU membership.
In addition, the e signatures directive of 1999 and the recent e-invoicing directive amended directive of 2014 constitute efforts by the EU to handle the most controversial barriers to electronic trade by creating a standard upon which electronic documentation could be accepted within their territory and made secure. The ultimate goal of these directives being to harmonize laws relating to electronic commerce in the most expeditious way possible.
National efforts in trade facilitation have also shown that the general trend toward electronic documentation is integral in terms of maintaining relevance in today’s global market. In the United States for example the Uniform Electronic Transactions ACT (UETA) of 1999 sought the harmonizing of local laws relating to trade by legitimizing electronic documentation and giving them legal status equivalent to paper documentation on the condition that both parties to a transaction have agreed to communicate electronically. In addition, the Electronic Signatures in Global and National Commerce Act passed by the US congress in 2000 facilitates the use of electronic records in foreign and national commerce by ensuring that contracts formed under this federal law received equal treatment under law as any other form of commercial contract. A national ESIGN day on June the 30th has been used to commemorate the passage of the ACT.
In Canada and Australia, the Uniform Electronic Commerce Act (UECA) (1999) and the Electronic Transactions Act (1999) respectively were both based on UNCITRAL Model law of Electronic Commerce. The Canadian Law which was drafted as more of a model for Canadian provinces and territories to amend their laws for the acceptance of electronic documentation offered a three-part solution comprising the setting up of rules governing functional equivalence between paper and electronic documentation, the creation of rules governing the types of communications and technical specifications required for electronic commerce and the carriage of goods specifically. The Australian Law concerned itself with only two principles. The establishment of functional equivalence in ensuring that e documentation received equal treatment under the law and technological neutrality in ensuring that there was no discrimination against the forms of technology used for communication.
Trade related Organizations
The development of the UNEDocs concept by the United Nations Economic Commission for Europe (UNECE) represents an earlier attempt to provide a global solution to the transition from paper documentation. The UNeDocs system is based on a common data standard and requirements where the same data could be used across many document types. The format for these documents standardized information across countries which enabled financial transactions through banking systems allowing for a common set of data with which to process payments and transactions. The results of this initiative saw the reduction of the number of data elements in the documents of the United States and Australia by 90% after the adoption of the UNedocs Solution.
Similarly, the Global Air Cargo Advisory Group (GACAG), an organization made up of the International Federation of Freight Forwarders Associations (FIATA), the International Air Transport Association (IATA), The International Air Cargo Association (TIACA) and the Global Shippers’ Forum (GSF) adopted a three pillar approach to paperless transportation in 2012. This approach comprised the establishment of a route network through the engagement of regulations to create a network where customs processes support paperless documentation, the implementation of airport to airport paperless solutions through digitizing core air transport documents such as the Air Waybill and flight manifests and finally the implementing of paperless door to door processes through digital commercial document eliminating the need for document pouches. This initiative set specific target goals for completion of all its processes by 2015; and has been largely successful in the more receptive and developed countries like the US who have the infrastructure to support these capital intensive changes in a short period of time. 
The use of Electronic documentation in today’s trade industry is of paramount importance and can no longer be seen as a choice in the light of the economic and logistical advantages which it affords companies. The implementation of the CargoDocs platform for example has improved Jetty utilization for a single client in the amount of $100,000 a year, paper savings in the amount of $70,000, reduced terminal moves in the amount of $65,000 and document amendment savings in the amount of $10,000 per year. These are savings which the average company cannot afford to ignore if it intends to remain competitive.
At the national
level, nations who continue to insist on paper trading will also be at a severe
economic disadvantage as the time and costs required for the processing of
shipments will inevitably render their trade infrastructure as being too costly
for manufacturers and exporters alike. Investment in electronic documentation
and e-commerce represents investment in ensuring that nation states remain
viable as trade destinations especially if they form part of regional trade
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