Harmonised Global Interchange ? UNCITRAL's draft model law for Electronic Data Interchange.

AutorGregor C. Heinrich
CargoHead of Legal Research and International Cooperation. Legal Service. Bank for International Settlements. Basel, Suiza.

Traditionally, companies have always conducted and documented a large part of their business on paper. Paper transactions went along with well-developed mechanisms and legal concepts for proving origin, preventing repudiation and maintaining confidentiality. This paper-based tradition is increasingly being abandoned in favour of EDI. EDI is changing the way major companies conduct business, both nationally and across international boundaries. This development is based on the advent of computers, the vast increase in the amount of business transactions, and new concepts such as 'just-in-time' production and delivery of goods, improved supply chain management and effective corporate cash flow management. EDI, it is felt, can make

business more efficient, more productive and more competitive.

EDI is a technique which replaces the paper medium on which trade data were traditionally communicated by computer-to-computer transfer of structured information. Such trade data may comprise, as on paper, contractual or trade-related information, such as orders, invoices, specifications or parts lists, and increasingly also the information required for 'electronic funds transfer' for the settlement of invoices. An electronic exchange of such trade data between companies, across business branches and even across borders is inconceivable without a high degree of standardisation. Standardisation and harmonisation are not only required with respect to the communications technology that is currently available, but may also be

desirable in the legal field.(2)


Technical Standardisation

Technical standardisation addresses on the one hand the hardware and computer programs, their ability to be linked and to communicate with one another and the technical means to safeguard security. On the other hand, standard forms are required for the messages themselves. Such standardisation is a sine qua non for end-to-end computer-processing. Some trade branches have developed effective standards for information exchange, such as SWIFT in the banking business.(3) However, such standards are restricted to the specific business branch.

Therefore, worldwide message standards are being developed under the auspices of the UN, and constantly expanded.

UN/EDIFACT (United Nations/Electronic Data Interchange for Administration, Commerce and Transport) aims to enable the

worldwide exchange of large volumes of data regardless of the language of origin or the communications and computer systems employed. Even though it cannot yet be said that UN/EDIFACT is the only standard used in EDI, it appears that current harmonisation efforts are clearly in favour of UN/EDIFACT.(4) Also the American National Standards Institute (ANSI) recently voted to move to the international UN/EDIFACT standard.


Legal Standardisation

Legal Standardisation tries to solve problems that arise on two levels, in parallel with the technical issues: on the one hand, contractual issues between parties who directly exchange EDI messages, and on the other hand, the legal framework that should serve for all trading partners who use or are affected by EDI messages.(5)

So far, most attempts to solve legal problems arising out of the use of EDI have relied on a contractual approach.(6) It was left entirely to the trading partners to define their mutual rights and obligations within an existing national framework. This created a need for standard contractual arrangements.

Such Model Trading Partner Agreements have been either developed by national EDI Associations, such as the EDI Council of Canada or the EDI Association of the United Kingdom. But they may also be developed by specialised commercial entities. For instance, in Switzerland a standard EDI contract, to be used between banks and their customers, has recently been published by 'Telekurs AG', the firm which also performs the technical operation for the Swiss Interbank Clearing (SIC)system.(7)

But even if in some countries standard 'EDI contracts' will come into existence, the various standard contracts will vary from country to country. Therefore, groups have been created to consider the elaboration of global standard communications agreements for universal use.

In maritime commerce, for example, the Comiti Maritime International (CMI) set up an international subcommittee on

Electronic Transfer of Rights to Goods in Transit, which has produced a set of voluntary rules entitled 'CMI Rules for Electronic Bills of Lading'.(8)

On an international level, the International Chamber of Commerce, Paris, published 'Uniform Rules of Conduct for Interchange of Trade Data by Teletransmission ('UNCID') in 1988.(9) This is a set of non- mandatory rules of conduct which users of electronic communications technology and suppliers of network services can incorporate by reference into their communication agreement. Its primary provisions cover: required care for transferring and receiving messages; identification of the parties; acknowledgement of receipt; verification of completeness of a received message; protection of the information exchanged; maintenance of records and storage of data.

At the level of the European Union, a special programme is dedicated to EDI: TEDIS, Trade Electronic Data Interchange

Systems.(10) In this framework a report on the legal position of the EU member states with respect to EDI was published in 1989. A 'European Interchange Agreement' was elaborated and a draft published in 1991. It forms the basis for many national contract models, which, of course, require some adapting to the specific national legal framework.

However, even the most refined contractual clauses cannot solve certain problems that arise with EDI, in particular whenever EDI messages are communicated across national borders. Depending on...

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