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e Transactions

This document discusses the regulatory landscape of electronic transactions, highlighting constraints on behaviors, compliance costs, and legal frameworks such as the UNCITRAL Model Law on Electronic Commerce and Electronic Signatures. It examines the legal nature of communications and their impact on contracts, ownership, and regulatory requirements. The text also addresses necessary legal certainty and harmonization of foreign electronic documents. Furthermore, it explores the integrity and retention of electronic records, consumer protection measures, and the formation of contracts in the digital age.

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e Transactions

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  1. eTransactions Dr Ian Walden Institute of Computer and Communications Law, Centre for Commercial Law Studies, Queen Mary, University of London Baker & McKenzie

  2. Introductory Remarks • Regulation • constraints on behaviour & facilitation of activities • as comparative advantage? • cost • of compliance/avoidance & enforcement • Electronic Transactions Model Law • Electronic Evidence Model Law • UNCITRAL Model Law on Electronic Commerce (1996) • Model Law on Electronic Signatures (2001)

  3. Legal nature of communications • Communications with non-contractual significance • Communications with contractual significance • Communications which transfer ownership or legal rights • Communications required for regulatory purposes • Communications that require prior legal authority or licence

  4. Requirements of Form

  5. Legal certainty • Regulation as facilitation • objects (article 3) • facilitate, enable, trust • harmonisation • recognition of foreign electronic docs & signatures (art. 13) • interpretative? • liberalise, preserve, abolition • minimum standards • Article 6, Non-discrimination • legal effect, validity and enforceability • prescribed form (article 8)

  6. Writing • Statutory definitions • e.g. UK: Interpretation Act 1978: “…in visible form…” • Article 7, Writing requirements • “accessible so as to be usable for subsequent reference” • various acts • retention capability • within the control of the addressee • ability to store and reproduce

  7. Signature • Article 9, Signature requirements • signature functions • identity, intention to be bound & validate integrity of document • ‘electronic signature’ • in order to sign; in/attached to/associated with document • parties may agree • regulatory intervention (article 25) • technology/methodologically specific • e.g. public key digital signatures • issue of reliability

  8. Signatures • UNCITRAL Model Law on Electronic Signatures (2001) • “...as reliable as appropriate….” • art. 6(3): linked to the signatory, under the control, detectable alterations • Expert Group Recommendation • Certification service providers and infrastructures

  9. Original • Uniqueness as security • impact of digital technologies • Article 10, Original documents • reliable means of assuring maintenance of integrity • usable for subsequent reference & capable of being retained • UNCITRAL Art. 8 • integrity: “from the time when it was first generated in its final form”

  10. Retention • Article 11, Keeping written documents • reliable means of assuring maintenance of integrity • usable for subsequent reference for any person entitled to have access • Additional rules for records retained for government-related purposes? • e.g. revenue related matters • UNCITRAL art. 10(1)(c) • meta-data: identification of origin & destination, date & time of sending & receipt

  11. Integrity • Article 12, Integrity of information • complete and unaltered • except that which arises in the normal course of communication, storage or display • e.g. packet loss

  12. eGovernment • Article 14, Government uses • facilitate • if consents to receive information in electronic form, can specify • manner & format • type of electronic signature required • security procedures • other attributes specified for paper (equivalence) • extension to payments • Article 17, Consent • can not require citizens

  13. Forming Contracts

  14. Contract Formation • Article 18, Contracts • offer & acceptance through ‘touching or clicking’ • declaration of will (article 21) • e.g. trusts • mistakes (article 20) • Article 19, Automated transactions • electronic agents (e.g. Java, Active X) or electronic data interchange (EDI) • attribution (article 23) • Article 15, Exclusions • e.g. transfer of interests in real property, negotiable instruments • transactional or broader

  15. Communication Procedure • When & where? • “instantaneous” communications • Miles v Entores Far East Corporation • postal rule • Adams v Lindsell • Article 22, Time and place of sending & receiving electronic communications • sent: loss of control • received: capable of being retrieved • deeming: location

  16. Consumer Protection • Article 24 • transparency requirements • identity and contact details • sufficient description • e.g. eBay auction sites? • terms and conditions • method of payment • withdrawal, termination, return, exchange, cancellation and refund • e.g. EU Distance-selling Directive (97/7EC)

  17. Concluding remarks

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