UNCITRAL Model Law on Electronic Transferable Records: Another Failure or a Facilitator for the Use of Electronic Bills of Lading?

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Abstract

Last year, UNCITRAL adopted the Model Law on Electronic Transferable Records (MLETR). The MLETR aims to give legal effect to the use of electronic transferable records that are functionally equivalent to transferable documents. Bills of lading (B/Ls) are an important type of document that fall under the scope of the MLETR. There have been several attempts to give legal effect to the use of electronic B/Ls, but currently none of them are in effect. Articles 16 and 17 of the Model Law on Electronic Commerce (MLEC) failed to be enacted by many States, since they are insufficient to provide legal certainty while industry was not prepared to adopt electronic B/Ls. On the other hand, the MLETR provides an accurate and reliable mechanism that fulfils functional equivalence based on the requirements of singularity and control (Articles 10 and 11) together with the standards for reliability assessment (Article 12). The MLETR follows in the wake of another past attempt made to facilitate the shift to electronic B/Ls - the Rotterdam Rules, the first international convention for carriage of goods by sea that officially acknowledges the use and effect of negotiable electronic transport records. Unfortunately, there has been no sign that the Rotterdam Rules is likely to enter into effect anytime in the near future. While the MLETR may properly function without the Rotterdam Rules, it is important to note that one of the relevant aims of establishing the MLETR is “assisting in the implementation of the Rotterdam Rules”. Not only will enactment of the MLETR be easier than ratification of the Rotterdam Rules, the enactment of the model law will almost certainly play a key role in any functional legal framework that successfully supports the use of electronic B/Ls.
Original languageEnglish
Title of host publicationPORT MARITIME AND TRANSPORT LAW BETWEEN LEGACIES OF THE PAST AND MODERNIZATION
EditorsMassimiliano Musi
Place of PublicationBologna
PublisherBONOMO Editore
Pages591-631
Number of pages41
Volume5
Edition2018
ISBN (Print)9788869721229
Publication statusPublished - Dec 2018

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