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Author's Note - Gregor C. Heinrich
The text of the Model Law which is reproduced hereafter - with kind permission from UNCITRAL - is an unofficial version provided in a personal capacity - without accepting responsibility for its contents, by Mr. Gregor C. Heinrich. Mr. Heinrich is a member of the Legal Service of the Bank for International Settlements, Basle, Switzerland [Tel.: xx41-61-280 8730; Fax: xx41-61-280 91 00, e-mail: 100303.100@compuserve.com].Articles 1, and 3 to 11 are based on revisions made to draft during the 28th session of the Commission [UNCITRAL] in May 1995 (to be reproduced in a report to the UN General Assembly "General Assembly, Fiftieth Session, Supplement No.17, UN Doc. A/50/17), whereas articles 2 and 12 to 14 are based on the UNCITRAL draft as approved by the Working Group at its 28th session in October 1994 (reproduced in the annex to UN Document A./CN.9/406), and presented to the Commission in May 1995. Some revisions to the text of the Model Law may therefore still be made in future sessions of the Working Group.
Articles in square brackets indicate that the Working Group and/or Commission is still undecided as regards the precise wording.
Web JCLI | [1995] 3 Web JCLI | Download this file.
UNCITRAL - DRAFT MODEL LAW ON LEGAL ASPECTS OF ELECTRONIC DATA INTERCHANGE (EDI) AND RELATED MEANS OF COMMUNICATION
GENERAL PROVISIONS
APPLICATION OF LEGAL REQUIREMENTS TO DATA MESSAGE
- Article 4. Legal recognition of data messages
- Article 5. Writing
- Article 6. Signature
- Article 7. Original
- Article 8. Admissibility and evidential weight of data messages
- Article 9. Retention of data messages
- Article 5. Writing
COMMUNICATION OF DATA MESSAGES
- Article 10. Variation by agreement
- Article 11. Attribution of data messages
- Article 12. Acknowledgement of receipt
- Article 13. Formation and validity of contracts
- Article 14. Time and place of dispatch and receipt of data messages
- Article 11. Attribution of data messages
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.****_______
* This Law does not override any rule of law intended for the protection of consumers.
** The Commission suggests the following text for States that might wish to limit the applicability of this Law to international data messages:
This Law applies to a data message as defined in paragraph 1 of article 2 where the data message relates to international commerce.
*** The term "commercial" should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions:
any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road.
**** The Commission suggests the following text for States that might wish to extend the applicability of this Law:
This Law applies to any kind of information in the form of a data message [used in the context of ...] [,except in the following situations;...].
______
Arrangement of Articles | Author's Note
Article 2. Definitions
For the purposes of this Law:
a) "Data message" means information generated, stored or communicated by electronic, optical or analogous 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 generated, stored or communicated, 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, receives, transmits or stores that data message or provides other services with respect to that data message;
f) "Information system" means a system for generating, transmitting, receiving or storing information in a data message.
Arrangement of Articles | Author's Note
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 which are not expressly settled in it are to be settled in conformity with the general principles on which this Law is based.
Arrangement of Articles | Author's Note
CHAPTER II.
APPLICATION OF LEGAL
REQUIREMENTS TO DATA MESSAGES
Article 4. Legal recognition of data messages
Information shall not be denied legal effectiveness, validity or enforceability solely on the grounds that it is in the form of a data message.
Article 5. Writing
(1) Where a rule of law requires information to be in writing or to be presented in writing, or provides for certain consequences if it is not, a data message satisfies that rule if the information contained therein is accessible so as to be usable for subsequent reference.(2) The provisions of this article do not apply to the following:
[...].
Article 6. Signature
(1) Where a rule of law requires a signature, or provides for certain consequences in the absence of a signature, that rule shall be satisfied in relation to a data message if:
a) a method is used to identify the originator of the data message and to indicate the originator's approval of the information contained therein; andb) 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 agreement between the originator and the addressee of the data message.
(2) The provisions of this article do not apply to the following:
[...].
Arrangement of Articles | Author's Note
Article 7. Original
(1) Where a rule of law requires information to be presented or retained in its original form, or provides for certain consequences if it is not, a data message satisfies that rule 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; andb) 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) Where any question is raised as to whether subparagraph (a) of paragraph (1) of this article is satisfied:
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; andb) 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.
(3) The provisions of this article do not apply to the following:
[...].
Arrangement of Articles | Author's Note
Article 8. 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 grounds 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.
[(3) Subject to any other rule of law, where subparagraph (b) of paragraph (1) of article 8 is satisfied in relation to information in the form of a data message, the information shall not be accorded any less weight in any legal proceedings on the grounds that it is not presented in its original form.]
Arrangement of Articles | Author's Note
Article 9. Retention of data messages
(1) Where a rule of law requires that certain documents, records or information be retained, that requirement shall be satisfied by retaining data messages, provided that the following conditions are met:
a) the information contained therein is accessible so as to be usable for subsequent reference; andb) the data message is retained in the format in which it was generated, transmitted or received, or in a format which can be demonstrated to represent accurately the information generated, transmitted 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 of its transmission or reception.
(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 transmitted 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.
Arrangement of Articles | Author's Note
CHAPTER III.
COMMUNICATION OF DATA
MESSAGES
Article 10. Variation by agreement
(1) As between parties involved in generating, storing, communicating, receiving or otherwise processing data messages, and except as otherwise provided, the provisions of this chapter 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.
Arrangement of Articles | Author's Note
Article 11. Attribution of data messages
(1) A data message is that of the originator if it was communicated 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 communicated by a person who had the authority to act on behalf of the originator in respect of that data message.
(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 for that purpose which was
(i) previously agreed by the originator; or(ii) reasonable in the circumstances; 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) shall not apply:
a) after the addressee has received notice within a reasonable time from the originator that the data message is not that of the originator; orb) in a case within paragraph (3)(a)(ii) or (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 content of the data message as received as being what the originator intended to transmit, 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 content of 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 unless it repeats the content of another data message, and the addressee knew or should have known, had it exercised reasonable care or used any agreed procedure, that the repetition was a duplication and not the transmission of a separate data message. ]
Arrangement of Articles | Author's Note
Article 12. Acknowledgement of receipt
(1) This article applies where, on or before sending a data message, or by means of that data message, the originator has requested an acknowledgement of receipt.(2) Where the originator has not requested that the acknowledgement be in a particular form, the request for an acknowledgement may be satisfied by any communication or 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 that acknowledgement, the data message has no legal effect 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:
a) the originator may give notice to the addressee stating that no acknowledgement has been received and specifying a time, which must be reasonable, by which the acknowledgement must be received; andb) if the acknowledgement is not received within the time specified in subparagraph (a), the originator may, upon notice to the addressee, treat the data message as though it had never been transmitted, or exercise any other rights it may have.
(5) Where the originator receives an acknowledgement of receipt, it is presumed that the related data message was received by the addressee. 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.
Article 13. 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:
[...].
Arrangement of Articles | Author's Note
Article 14. Time and place of dispatch and receipt of data messages
(1) Unless otherwise agreed between the originator and the addressee of a data message, the dispatch of a data message occurs when it enters an information system outside the control of the originator.(2) Unless otherwise agreed between the originator and the addressee of a data message, 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 such data messages, receipt occurs at the time when the data message enters the designated information system, but if the data message is sent to an information system of the addressee that is not the designated information system, receipt occurs 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 that the place where the information system is located may be different from the place where the data message is received under paragraph (4).
(4) Unless otherwise agreed between the originator and the addressee of a computerized transmission of a data message, a data message is deemed to be received at the place where the addressee has its place of business, and is deemed to be dispatched at the place where the originator has its place of business. For the purposes of this paragraph:
a) if the addressee or the originator 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 addressee or the originator does not have a place of business, reference is to be made to its habitual residence.
c) Paragraph (4) shall not apply to the determination of place of receipt or dispatch for the purpose of any administrative, criminal or data-protection law.
______________________________
Arrangement of Articles | Author's Note