Advisory Committee on Private International Law Request for Public Comments on a Draft UN Convention on Electronic Commerce

Summary: Comment is sought on a draft UNCITRAL convention (multilateral treaty) on use of electronic messaging in the formation of contracts and related matters. Completion of the convention is possible by the Fall of 2005; it is then optional for member States to accept and implement the convention. Advisory Committee meetings will be held as indicated below; additional meetings will be scheduled after the next UNCITRAL Working Group meeting in mid-October to review changes to the draft text. Persons not able to attend are welcome to provide comments at any time as indicated below.

Request for Comments: The Office of Legal Advisor of the Department of State requests comments on the current and future drafts of a convention under consideration by the United Nations Commission on International Trade Law (UNCITRAL), through its Working Group IV on electronic commerce, designed to promote basic enabling laws on enforceability of electronic messaging related to contractual matters. The draft may encompass default rules on dispatch and receipt, error correction in automated transactions, location for purposes of applying the convention and for determining applicable law, and other matters affecting international electronic transactions within its scope.

Documentation: The current draft, Working Group IV's recent document WP.110, can be obtained on UNCITRAL's Web site at http://www.uncitral.org (http:// www.uncitral.org/English/workinggroups/wgIVec/index.htm). Commentators may wish to review additional documents therein listed, including reports of prior Working Group meetings, Secretariat analyses, and other matters.

Project Timing: The UNCITRAL Working Group, composed of member and observer States and participants from other governmental and non-governmental organizations, will review the current draft text in mid-October at United Nations offices in Vienna, Austria, and a revised draft is expected to be available for comment by mid-November. The revised text will be reviewed by the Working Group at its next meeting in April 2005 in New York. If sufficient progress has been made and if support from enough countries is evidenced, the text could be finalized at UNCITRAL's annual Plenary session in July 2005. If that is not feasible, a text could be completed at the next succeeding annual plenary session in mid-2006. Once completed and if endorsed by the UN General Assembly, consideration would be given in the United States whether and on what terms to join the new treaty, or implement it in another manner, and whether to promote its adoption by other States.

Overview: As now drafted, the convention is intended to expand a common base-line between participating States of general principles applying to electronic transactional communications. These principles are largely drawn from relevant parts of the 1996 UNCITRAL Model law on Electronic Commerce, as well as similar provisions in uniform state laws and federal law adopted in the United States, including the 1999 Uniform Electronic Transactions Act (UETA), and the Electronic Signatures in Global and National Commerce Act (“E-Sign”), enacted by Congress in 2000. In addition to commercial transactions within its scope that cross State boundaries, the proposed convention would also apply to transactions governed by certain listed UN commercial law conventions and to such other treaties and international agreements as may be agreed upon by participating States. As an overlay to existing laws, the convention would be designed to promote harmonized rules and fill gaps between the laws that may otherwise apply, thus promoting efficiency and certainty in cross-border transactions. Particular notice should be given to certain provisions of the draft convention: Article 2 on general exclusions from the convention; Article 3 on party autonomy, which permits parties to vary or modify the convention's terms as to their transactions; Article 8, which provides that parties cannot be obligated by this treaty to use e-messages; and Article 18, which allows each country to exclude such further matters as it deems appropriate. Finally, as the present draft indicates, it is expected that a number of optional provisions (called declarations) will permit States to further modify certain provisions from time to time. That flexibility, as well as the optional exclusions in article 18, would allow adjustment of the rules to specific classes of transactional activity, as usages change and the needs of electronic commerce grow over time.

Commentators should take into account the provisions of current laws in the United States noted above, as well as other state and federal law. Attention should also be given to existing legal treatment in other countries and in regional bodies such as the European Union, as well as relevant treaties and international agreements.

Public Comment: Comments can be sent to the Office of the Assistant Legal Adviser for Private International Law of the Department of State in any form addressed to Harold S. Burman (L/PIL) 2430 E Street, NW., Suite 355 South Building,Washington, DC 20037-2800, or by fax to (202) 776-8482, or by e-mail to halburman@aol.com.

Meeting(s): Persons wishing to attend one or more public meetings or to receive direct notice of further convention drafts and other information may do so by contacting Cherise Reid at ReidCD@state.gov or by fax at (202) 776-8482 with their names, contact numbers, including e-mail addresses, and affiliations, if any. Meetings are expected to be scheduled in the week of September 13 in the Washington, DC metropolitan area in conjunction with a forum on CEFACT, a body of the UN's Economic Commission for Europe, and additional meetings are expected to be scheduled after release of the next revised draft convention in November 2004.