Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law, G.A. res. 51/162, 51 U.N. GAOR Supp. (No. 49) at 336, U.N. Doc. A/51/49 (Vol. I) (1996).
The General Assembly,
Recalling its resolution 2205 (XXI) of 17 December 1966, by which it
created the United Nations Commission on International Trade Law, with a
mandate to further the progressive harmonization and unification of the law of
international trade and in that respect to bear in mind the interests of all
peoples, in particular those of developing countries, in the extensive
development of international trade,
Noting that an increasing number of transactions in international trade
are carried out by means of electronic data interchange and other means of
communication, commonly referred to as "electronic commerce", which involve
the use of alternatives to paper-based methods of communication and storage of
information,
Recalling the recommendation on the legal value of computer records
adopted by the Commission at its eighteenth session, in 1985, and paragraph 5
(b) of General Assembly resolution 40/71 of 11 December 1985, in which the
Assembly called upon Governments and international organizations to take
action, where appropriate, in conformity with the recommendation of the
Commission, so as to ensure legal security in the context of the widest
possible use of automated data processing in international trade,
Convinced that the establishment of a model law facilitating the use of
electronic commerce that is acceptable to States with different legal, social
and economic systems could contribute significantly to the development of
harmonious international economic relations,
Noting that the Model Law on Electronic Commerce was adopted by the
Commission at its twenty-ninth session after consideration of the observations
of Governments and interested organizations,
Believing that the adoption of the Model Law on Electronic Commerce by
the Commission will assist all States significantly in enhancing their
legislation governing the use of alternatives to paper-based methods of
communication and storage of information and in formulating such legislation
where none currently exists,
1. Expresses its appreciation to the United Nations Commission on
International Trade Law for completing and adopting the Model Law on
Electronic Commerce contained in the annex to the present resolution and for
preparing the Guide to Enactment of the Model Law;
2. Recommends that all States give favourable consideration to the
Model Law when they enact or revise their laws, in view of the need for
uniformity of the law applicable to alternatives to paper-based methods of
communication and storage of information;
3. Recommends also that all efforts be made to ensure that the Model
Law, together with the Guide, become generally known and available.
ANNEX
Model Law on Electronic Commerce of the United Nations
Commission on International Trade Law
PART ONE. ELECTRONIC COMMERCE IN GENERAL
CHAPTER I. GENERAL PROVISIONS
Article 1
Sphere of application
This Law applies to any kind of information in the form of a data
message used in the context of commercial activities.
Article 2
Definitions
For the purposes of this Law:
(a) "Data message" means information generated, sent, received or
stored by electronic, optical or similar means including, but not limited to,
electronic data interchange (EDI), electronic mail, telegram, telex or
telecopy;
(b) "Electronic data interchange (EDI)" means the electronic transfer
from computer to computer of information using an agreed standard to structure
the information;
(c) "Originator" of a data message means a person by whom, or on whose
behalf, the data message purports to have been sent or generated prior to
storage, if any, but it does not include a person acting as an intermediary
with respect to that data message;
(d) "Addressee" of a data message means a person who is intended by
the originator to receive the data message, but does not include a person
acting as an intermediary with respect to that data message;
(e) "Intermediary", with respect to a particular data message, means a
person who, on behalf of another person, sends, receives or stores that data
message or provides other services with respect to that data message;
(f) "Information system" means a system for generating, sending,
receiving, storing or otherwise processing data messages.
Article 3
Interpretation
1. In the interpretation of this Law, regard is to be had to its
international origin and to the need to promote uniformity in its application
and the observance of good faith.
2. Questions concerning matters governed by this Law that are not expressly
settled in it are to be settled in conformity with the general principles on
which this Law is based.
Article 4
Variation by agreement
1. As between parties involved in generating, sending, receiving, storing
or otherwise processing data messages, and except as otherwise provided, the
provisions of chapter III may be varied by agreement.
2. Paragraph 1 does not affect any right that may exist to modify by
agreement any rule of law referred to in chapter II.
CHAPTER II. APPLICATION OF LEGAL REQUIREMENTS TO DATA MESSAGES
Article 5
Legal recognition of data messages
Information shall not be denied legal effect, validity or enforceability
solely on the grounds that it is in the form of a data message.
Article 6
Writing
1. 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.
2. Paragraph 1 applies whether the requirement therein is in the form of an
obligation or whether the law simply provides consequences for the information
not being in writing.
3. The provisions of this article do not apply to the following: <...>.
Article 7
Signature
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.
3. The provisions of this article do not apply to the following: <...>.
Article 8
Original
1. 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
(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.
2. Paragraph 1 applies whether the requirement therein is in the form of an
obligation or whether the law simply provides consequences for the information
not being presented or retained in its original form.
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.
4. The provisions of this article do not apply to the following: <...>.
Article 9
Admissibility and evidential weight of data messages
1. In any legal proceedings, nothing in the application of the rules of
evidence shall apply so as to deny 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.
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.
Article 10
Retention of data messages
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.
2. An obligation to retain documents, records or information in accordance
with paragraph 1 does not extend to any information the sole purpose of which
is to enable the message to be sent or received.
3. A person may satisfy the requirement referred to in paragraph 1 by using
the services of any other person, provided that the conditions set forth in
subparagraphs (a), (b) and (c) of paragraph 1 are met.
CHAPTER III. COMMUNICATION OF DATA MESSAGES
Article 11
Formation and validity of contracts
1. In the context of contract formation, unless otherwise agreed by the
parties, an offer and the acceptance of an offer may be expressed by means of
data messages. Where a data message is used in the formation of a contract,
that contract shall not be denied validity or enforceability on the sole
ground that a data message was used for that purpose.
2. The provisions of this article do not apply to the following: <...>.
Article 12
Recognition by parties of data messages
1. As between the originator and the addressee of a data message, a
declaration of will or other statement shall not be denied legal effect,
validity or enforceability solely on the grounds that it is in the form of a
data message.
2. The provisions of this article do not apply to the following: <...>.
Article 13
Attribution of data messages
1. A data message is that of the originator if it was sent by the
originator itself.
2. As between the originator and the addressee, a data message is deemed to
be that of the originator if it was sent:
(a) By a person who had the authority to act on behalf of the
originator in respect of that data message; or
(b) By an information system programmed by or on behalf of the
originator to operate automatically.
3. As between the originator and the addressee, an addressee is entitled to
regard a data message as being that of the originator, and to act on that
assumption, if:
(a) In order to ascertain whether the data message was that of the
originator, the addressee properly applied a procedure previously agreed to by
the originator for that purpose; or
(b) The data message as received by the addressee resulted from the
actions of a person whose relationship with the originator or with any agent
of the originator enabled that person to gain access to a method used by the
originator to identify data messages as its own.
4. Paragraph 3 does not apply:
(a) As of the time when the addressee has both received notice from
the originator that the data message is not that of the originator and has had
reasonable time to act accordingly; or
(b) In a case within paragraph 3 (b), at any time when the addressee
knew or should have known, had it exercised reasonable care or used any agreed
procedure, that the data message was not that of the originator.
5. Where a data message is that of the originator or is deemed to be that
of the originator, or the addressee is entitled to act on that assumption,
then, as between the originator and the addressee, the addressee is entitled
to regard the data message as received as being what the originator intended
to send, and to act on that assumption. The addressee is not so entitled when
it knew or should have known, had it exercised reasonable care or used any
agreed procedure, that the transmission resulted in any error in the data
message as received.
6. The addressee is entitled to regard each data message received as a
separate data message and to act on that assumption, except to the extent that
it duplicates another data message and the addressee knew or should have
known, had it exercised reasonable care or used any agreed procedure, that the
data message was a duplicate.
Article 14
Acknowledgement of receipt
1. Paragraphs 2 to 4 of this article apply where, on or before sending a
data message, or by means of that data message, the originator has requested
or has agreed with the addressee that receipt of the data message be
acknowledged.
2. Where the originator has not agreed with the addressee that the
acknowledgement be given in a particular form or by a particular method, an
acknowledgement may be given by:
(a) Any communication by the addressee, automated or otherwise; or
(b) Any conduct of the addressee,
sufficient to indicate to the originator that the data message has been
received.
3. Where the originator has stated that the data message is conditional on
receipt of the acknowledgement, the data message is treated as though it has
never been sent, until the acknowledgement is received.
4. Where the originator has not stated that the data message is conditional
on receipt of the acknowledgement, and the acknowledgement has not been
received by the originator within the time specified or agreed or, if no time
has been specified or agreed, within a reasonable time the originator:
(a) May give notice to the addressee stating that no acknowledgement
has been received and specifying a reasonable time by which the
acknowledgement must be received; and
(b) If the acknowledgement is not received within the time specified
in subparagraph (a), may, upon notice to the addressee, treat the data message
as though it had never been sent, or exercise any other rights it may have.
5. Where the originator receives the addressee's acknowledgement of
receipt, it is presumed that the related data message was received by the
addressee. That presumption does not imply that the data message corresponds
to the message received.
6. Where the received acknowledgement states that the related data message
met technical requirements, either agreed upon or set forth in applicable
standards, it is presumed that those requirements have been met.
7. Except insofar as it relates to the sending or receipt of the data
message, this article is not intended to deal with the legal consequences that
may flow either from that data message or from the acknowledgement of its
receipt.
Article 15
Time and place of dispatch and receipt of data message
1. Unless otherwise agreed between the originator and the addressee, the
dispatch of a data message occurs when it enters an information system outside
the control of the originator or of the person who sent the data message on
behalf of the originator.
2. Unless otherwise agreed between the originator and the addressee, the
time of receipt of a data message is determined as follows:
(a) If the addressee has designated an information system for the
purpose of receiving data messages, receipt occurs:
(i) At the time when the data message enters the designated information
system; or
(ii) If the data message is sent to an information system of the
addressee that is not the designated information system, at the time
when the data message is retrieved by the addressee;
(b) If the addressee has not designated an information system, receipt
occurs when the data message enters an information system of the addressee.
3. Paragraph 2 applies notwithstanding the fact that the place where the
information system is located may be different from the place where the data
message is deemed to be received under paragraph 4.
4. Unless otherwise agreed between the originator and the addressee, a data
message is deemed to be dispatched at the place where the originator has its
place of business, and is deemed to be received at the place where the
addressee has its place of business. For the purposes of this paragraph:
(a) If the originator or the addressee has more than one place of
business, the place of business is that which has the closest relationship to
the underlying transaction or, where there is no underlying transaction, the
principal place of business;
(b) If the originator or the addressee does not have a place of
business, reference is to be made to its habitual residence.
5. The provisions of this article do not apply to the following: <...>.
PART TWO. ELECTRONIC COMMERCE IN SPECIFIC AREAS
CHAPTER I. CARRIAGE OF GOODS
Article 16
Actions related to contracts of carriage of goods
Without derogating from the provisions of part one of this Law, this
chapter applies to any action in connection with, or in pursuance of, a
contract of carriage of goods, including but not limited to:
(a) (i) Furnishing the marks, number, quantity or weight of goods;
(ii) Stating or declaring the nature or value of goods;
(iii) Issuing a receipt for goods;
(iv) Confirming that goods have been loaded;
(b) (i) Notifying a person of terms and conditions of the contract;
(ii) Giving instructions to a carrier;
(c) (i) Claiming delivery of goods;
(ii) Authorizing release of goods;
(iii) Giving notice of loss of, or damage to, goods;
(d) Giving any other notice or statement in connection with the
performance of the contract;
(e) Undertaking to deliver goods to a named person or a person
authorized to claim delivery;
(f) Granting, acquiring, renouncing, surrendering, transferring or
negotiating rights in goods;
(g) Acquiring or transferring rights and obligations under the
contract.
Article 17
Transport documents
1. Subject to paragraph 3, where the law requires that any action referred to
in article 16 be carried out in writing or by using a paper document, that
requirement is met if the action is carried out by using one or more data
messages.
2. Paragraph 1 applies whether the requirement therein is in the form of an
obligation or whether the law simply provides consequences for failing either
to carry out the action in writing or to use a paper document.
3. If a right is to be granted to, or an obligation is to be acquired by, one
person and no other person, and if the law requires that, in order to effect
this, the right or obligation must be conveyed to that person by the transfer,
or use of, a paper document, that requirement is met if the right or
obligation is conveyed by using one or more data messages, provided that a
reliable method is used to render such data message or messages unique.
4. For the purposes of paragraph 3, the standard of reliability required
shall be assessed in the light of the purpose for which the right or
obligation was conveyed and in the light of all the circumstances, including
any relevant agreement.
5. Where one or more data messages are used to effect any action in
subparagraphs (f) and (g) of article 16, no paper document used to effect any
such action is valid unless the use of data messages has been terminated and
replaced by the use of paper documents. A paper document issued in these
circumstances shall contain a statement of such termination. The replacement
of data messages by paper documents shall not affect the rights or obligations
of the parties involved.
6. If a rule of law is compulsorily applicable to a contract of carriage of
goods which is in, or is evidenced by, a paper document, that rule shall not
be inapplicable to such a contract of carriage of goods that is evidenced by
one or more data messages by reason of the fact that the contract is evidenced
by such data message or messages instead of by a paper document.
7. The provisions of this article do not apply to the following: <...>.
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