[Ecommerce] UN/CEFACT Legal Group meeting on e-contracting, dispute resolution,
cross border enforcement of contracts, commercial use of the ISO 3166 location
codes
James Love
james.love@cptech.org
Tue Oct 28 08:25:02 2003
CEFACT/LG/12/Rev.2
page 2
CEFACT/LG/12/R
ev.2
page 15
RESTRICTED
CEFACT/LG/12/Rev.2
United Nations Centre for Trade Facilitation and Electronic
Business (UN/CEFACT)
REPORT OF THE
FIFTH MEETING OF THE
UN/CEFACT LEGAL GROUP
Held on 29 September 2003
at the United Nations Office at Geneva, Switzerland
Source: Secretariat
Status: Draft
Action: To be reviewed by the LG meeting scheduled for 8-9
December 2003, in Philadelphia, USA
INTRODUCTION
The fifth session of the Legal Group (LG) of UN/CEFACT took
place on 29 September 2003 at the United Nations Office at
Geneva. It was chaired by Mr. Klaus Brisch, Vice-Chairman of
the Legal Group. Mr. Hans Hansell, Deputy Director of the
UNECE Trade Division, welcomed the participants in the
meeting. The list of participants can be found in the annex to
this report.
[snip]
Agenda item 5 =96 Review of LG projects
=B7 Joint project between the Techniques and Methodologies
Group (TMG) and the Legal Group (LG) on legal issues in ebXML
(UMAC - the joint proposal by the Legal and Techniques and
Methodology Groups of UN/CEFACT for a project with a series of
deliverables for enforcing e-business solutions through common
legal understanding)
Latest document UN/CEFACT Project Proposal: Unified
CEFACT/LG04/Rev.1 Business Agreements and Contracts
This project will look at the legal aspects of contractual
solutions in e-business and other legal issues related to e-
business standards.
The Group noted that the technical aspects of ebXML and other
e-business standards are very complex. They requested a
teleconference with the technical experts of TMG (Anders Tell,
Klaus-Dieter Naujok and others), who would explain the
technical issues of ebXML and e-business, so that the legal
experts can create a list of parallel legal issues (e.g.
technical stream issues corresponding to contract formation
issues). The result should be a parallel list of technical and
legal issues. This result can be offered for use to EDIFICE,
CEFIG and other user groups.
Arve F=F8yen and Klaus Brisch noted that there might be gaps
between the legal provisions of EU directives and the
technical solutions for e-business suggested by UN/CEFACT. One
example is how can one conclude valid contracts in an =93open
source=94 environment? There are many issues related to that
question, i.e. a contract has to be definite, when a contract
is concluded, etc.). Klaus Brisch offered to prepare an
initial list of questions. The product of this work can give
the basis for a new trade facilitation Recommendation (Mr.
Hill reminded that this was what happened with the work on EDI
years ago).
Decision 3: The LG decided, first, to define whether there is
a problem in the parallel between technical and legal
solutions for e-business, and, second, find a =93common
language=94 between the technical (TMG) and legal (LG)
communities.
(a) Klaus Brisch prepared a list of questions, added to this
report.
(b) Mario Apostolov will remind David Marsh to distribute the
=93topology=94 document for UMAC on the LG listserve.
(c) Mario Apostolov will send a message to the LG members and
to the TMG Chairman, which will include the initial list of
questions, and will ask for comments on whether there is a
problem and for questions to be added to the list.
(d) The UNECE secretariat will organize a teleconference from
Geneva, involving technical experts from TMG, in late October
2003. The teleconference should discuss the UMAC project
(parallel list of technical and legal issues in e-business
solutions) and the other projects of the LG.
(e) Mario Apostolov and Phil Nichols will investigate the
possibility to invite Carl Best from OASIS to the Philadelphia
meeting of the LG on 8-9 December 2003 to give an update on
ebXML and to discuss the legal aspects of the ebXML trading
partner agreement.
A set of issues relate to the use of codes on the Internet.
Richard Hill noted that there were increasing inquiries on the
possibility for a commercial use of the ISO 3166 location
codes (for more info see
http://www.iso.org/iso/en/commcentre/pressreleases/2003/Ref871
.html). Because of increasing budgetary constraints some
organizations might consider this option. The question is who
has the copyright on such codes. The LG might consider this
issue, for example if a commercial company providing UNECE
codes over the Internet starts charging for them. Those codes
were prepared in paper documents and were used in EDI, yet
with the development of Internet technology and Web Services
the rules of the game are changing. The LG may prepare an
opinion, in order to be ready for such scenarios.
Richard Hill also noted that it might be necessary to think of
making harmonized standards binding in a certain way, as trade
can be facilitated if a list of codes, for example, is
binding. Legal issues may arise from the lack of availability
of internationally agreed codes.
[snip]
=B7 Joint project between the Legal Group and the
International Trade Procedures Working Group (ITPWG) on legal
issues in trade facilitation
Mr. Richard Hill felt that this project should concentrate on
Scontractual and administrative barriers to trade=94, which can
be addressed by national agencies. In this situation, it was
felt, the LG project was not interfering with the UNCITRAL
remit on statutory law and international law. The deliverable
of this project can be a document defining best practice on
what a developing or transition economy can do to remove
barriers to trade from a legal point of view, so that it can
create a trade facilitation environment more attractive to
business and investment. It may be useful to consider models
of a code of conduct, while any work on model legislative
solutions remains in the remit of UNCITRAL.
The project should take into account the work done in the WTO
on a treaty on corruption.
Decision 5: The Group will investigate best practices
concerning the legal aspects of trade facilitation in
the framework of the joint project with the ITPWG. The
objective is a roadmap for developing countries and
transition economies on how to address the legal
issues of facilitating trade procedures. This will
necessitate the following steps:
(a) Mario Apostolov contact the ITPWG requesting some initial
input (list of issues to be covered, relevant documents);
(b) Mario Apostolov and all LG members will provide available
information for the project, aiming at preparing a roadmap for
developing and transition economies on the measures that they
should take in order to improve their trade facilitation
environment;
(c) Phil Nichols and his colleagues will produce a discussion
paper by 1 December 2003, and will distribute that document on
the LG listserve.
=B7 The way forward with the On-line Dispute Resolution (ODR)
work of UN/CEFACT
CEFACT/2001/LG14/Re Draft Recommendation on Online Dispute
v.16 Resolution (ODR)
The Group noted that the work on ODR has not been finalized,
and discussed what has to be done in the future. It was
reiterated that the Group was focusing on best practices,
whose use is completely voluntary, rather than dealing with:
the harmonization and unification of the law of international
trade; the development of international conventions, model
laws and uniform laws; and the promotion of the codification
and wider acceptance of international trade terms, which are
the responsibility of UNCITRAL according to Resolution 2205 of
the General Assembly
(http://www.uncitral.org/english/yearbooks/archives-e/2205-
e.htm). The LG should keep abreast of developments in ICC and
the ICC International Court of Arbitration.
Mario Apostolov will follow up with Prof. Ethan Cash and the
secretariat of the UNECE Energy Division on the future
collaboration on this project.
One of the outstanding issues is what law applies, even if the
draft stressed that ODR solutions will be voluntary. Another
issue is, to what issues this solutions may apply (copyright
issues, competition, etc.), is ODR understood only in terms of
mediation, etc. A third one is the mechanism of payment to the
neutral provider of the service. The LG may also consider
ongoing work in the C2G domain (Citizen to Government)
concerning e-Government.
A model ODR mechanism can be included in the Recommendation as
an example of a best practice. Phil Nichols will look into the
possibility to invite a representative of an ODR scheme in the
United States, which can be used as a model in the
Recommendation, in the way that a model e-commerce agreement
was attached to Recommendation 31 and a model code of conduct
to Recommendation 32. In their comments on the ODR draft
Houston Putnam Lowry wrote: =93Generally speaking, this is a non-
controversial general recommendation with no specific
suggestions. I think you are missing the opportunity to make a
significant impact. Why not at least state some general
principles that a good ODR system ought to have?=94 (Houston
Putnam Lowry, Esq. - Chartered Arbitrator, Brown & Welsh,
P.C., 530 Preston Avenue-Second Floor, P.O. Box 183, Meriden,
Connecticut 06450-0183 U.S.A., Phone: +1 (203) 235-1651, Fax:
+1 (203) 235-9600, www.BrownWelsh.com - Recent Developments).
It may be useful to consider the results of the work of Square
Trade. Obviously, the UDRP mechanism (on Internet domain
names) developed at WIPO should be taken into consideration.
The LG should continue its focus on identifying best practice
in the B2B area. Phil Nichols may also consider inviting the
American Arbitration Association.
Decision 6: Phil Nichols will invite a representative of an
ODR scheme in the United States (if possible in the
B2B area and a non-mediation approach). This and other
models will be considered as a model to be attached to
the Recommendation.
=B7 Cross-border recognition of electronic signatures
The Group agreed that cross-border recognition of electronic
signatures is an issue of increasing importance in the
international trade. Mario Apostolov suggested organizing a
Workshop, back to back with the LG meeting in Geneva in June
2004, to which major experts on the issue would be invited to
make presentation. In the preparations for this workshop, LG
members will be asked to provide best practice examples,
focusing on what the legal issues in cross-border recognition
are. In addition to UNCITRAL, which has prepared a Model Law
on Electronic Signatures, the initial list of organizations to
be invited to collaborate / make presentations included:
UPU (Universal Postal Union)=96 on their Postmark standard
The European Union (including elements on the
restructuring of their mechanism)
OECD
ICC
From the private sector organizations which have dealt
with the legal framework will be invited, for example:
T-systems
Authentidate (who were involved in promoting legislation
in Switzerland)
Verisign
Zebsign (Norway)
TScheme, UK
Company working with the chemical industry (to be
identified)
Further, participants will be asked to give examples and
exchange views on best practice from their countries. Arve
F=F8yen will discuss the possibility for a high level
involvement in the Ministry of Trade of Norway.
Hans Hansell noted that transition and developing countries
should be involved in this project, so that they can get
exposure to best practices that can be useful in the
development of the regulatory framework for e-signatures and e-
commerce in their countries.
Decision 7: The Group decided to enquire into the possibility
of organizing a workshop on cross-border recognition
of electronic signatures on 14 June 2004.
=B7 Other issues on the LG Work Programme
The Group considered whether there were any other areas in
which the LG could produce deliverables. Several LG members
noted that it would be appropriate for the Group to consider
electronic billing issues and electronic filing of taxes
issues. Richard Hill noted that it would be interesting to
carry out a survey on taxation issues (including such
questions as whether electronic filing is allowed and what are
the consequences). Certain issues related to paying and
redeeming VAT in cross-border trade might be considered as an
obstacle to trade. The problem exists even within Europe, and
a survey on that issue might be useful. In paying and
recuperating VAT there exist such issues as the need for
qualified signatures or what is the proof of the payments that
were made. A possibility to go forward with this issue is to
ask the LG members to send information on what the situation
in their countries is. One of the obstacles to international
trade facilitation is that electronic invoices are not even
possible. Arve F=F8yen noted that alternative reporting,
including tax reporting is becoming increasingly important,
and it uses Web Services. A Norwegian firm called Excentra is
dealing with that. The Group asked whether Excentra could make
a practical presentation at one of the future LG meetings on
electronic taxing (which can be a follow-up to the high-level
presentation by Klaus-Dieter Naujok at the Philadelphia LG
meeting).
Decision 8: Avre F=F8yen will inform Mario Apostolov whether
Excentra can do a presentation to the LG.
Agenda item 6 - Review of the action list
Decision 9: Mario Apostolov will make amendments to the LG
action list to reflect the decisions in this report
and the reports of the LG meeting in Tunis (December
2002) and the informal LG meeting in Newcastle (June
2003). David Marsh and Klaus Brisch will review the
list further.
[snip]
Agenda item 8 - Rolling dates for further meetings and
possible venues.
The following future meeting dates were discussed or agreed:
The secretariat will organize a conference call meeting on the
UMAC project and related issues provisionally on 31 October
2003
8-9 December 2003 - Philadelphia
15-16 March 2004 - Brussels (eventually together with the
UN/CEFACT Forum) or Cologne or Berlin (to be hosted by
Graf von Westphalen Bappert & Modest)
14-15 June 2004 Geneva (Monday, 14 June 2004 =96 LG Workshop on
Cross-Border Recognition of Electronic Signatures,
Tuesday, 15 June 2004 - LG meeting)
4-5 October 2004 Leidschendam, the Netherlands, hosted by ECP-
NL
Decision 13: David Marsh and Mario Apostolov will explore the
possibility to hold an LG meeting in Tehran and/or
Helsinki, subject to acceptance by hosts of the
principle that the host covers the cost of the
participation of the UN secretariat member.
Annex: LIST OF PARTICIPANTS
LG members:
Mr. Klaus BRISCH, LL.M. Tel.: +49 (0)2 21 208070
(Vice-Chairman of the LG) Tel. Secr.: +49 (0)2 21
2080773
Graf von Westphalen Bappert & Modest Fax: +49 (0)2 21
239255
Salierring 42 e-mail: klaus.brisch@westphalen-
law.com
D-50677 K=F6ln Mobile : +49 151 12141829
Germany
Mr. Arve F=D8YEN Tel.: +47 21 95 55 00
Simonsen F=F8yen Advokatfirma DA Direct dial: +47 21 95 55 96
P.O. Box 6641 St. Olavs plass Mobile: +47 91 81 99 62
N-0129 Oslo Fax: +47 21 95 55 01
Office: C J Hambros Plass 2 D e-mail:
arve.foyen@simonsenfoyen.no
N-0164 Oslo Internet:
http://www.simonsenfoyen.no
Norway
Mr. Richard HILL Tel.: +41 22 730 5887
Counsellor, ITU-T SG2 Fax: +41 22 730 5853
International Telecommunication Union Email:
richard.hill@itu.int
Place des Nations Study Group 2 email:
tsbsg2@itu.int
CH-1211 Geneva 20
Switzerland
UNECE Secretariat
Mr. Mario APOSTOLOV Tel.: +41 22 917 1134
Economic Affairs Officer Fax: +41 22 917 0037
UNECE Trade Division E-mail:
mario.apostolov@unece.org
Palais des Nations Web site:
www.unece.org/cefact
8-14, avenue de la Paix, office PN 437
1211 Geneva, Switzerland
Mr. Hans HANSELL Tel.: +41 22 917 2457
Deputy Director Fax: +41 22 917 0037
UNECE Trade Division E-mail: hans.hansell@unece.org
Palais des Nations Web site:
www.unece.org/cefact
8-14, avenue de la Paix, office PN 442
1211 Geneva, Switzerland
Annex I: Questions with regards to the link between technical
and legal issues in ebXML and other e-business standards:
The following list is certainly not containing all issues with
respect to the relation between technical and legal issues in
ebXML standards. But, they may stress certain highlights:
1. Does ebXML meet the legal tests by concluding a contract
using electronic means?
2. How does ebXML reflect offer, acceptance and
consideration?
3. Does ebXML include the notion of invitatio ad offerendum
(invitation to tender)?
4. A number of jurisdictions as well as the new EU directive
on electronic commerce lay down certain duties to inform the
purchaser prior to and after the conclusion of the contract.
How does ebXML take this legal requirement into consideration?
--
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040