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Recommendation No. 14, second edition, adopted by the Working
Party on Facilitation of International Trade Procedures, Geneva, March
1979 Source: TRADEWP.4/INF.63
[ Recommendation ] [
Part I - Background ] [ Part II - Alternative Methods
]
[ Conclusions ] [
Annex I - Signature Definitions and Legal Decisions ]
[ Annex II - Extracts from Conventions
] [ Annex III - The S.W.I.F.T System
]
The Working Party on Facilitation of International Trade Procedures,
as subsidiary organ of the United Nations Economic Commission for Europe,
has identified certain problems having legal implications in respect of
data flows in international trade arising from a need for authentication
by signature of trade data or documents used in international trade. A
study of these problems by an informal team of experts, convened by the
International Chamber of Commerce (ICC),
during which the Belgian and Norwegian members gave special attention to
the problem and worked closely with the convener. indicated the possibility
of replacing signatures by different, alternative methods of authentication.
These findings, presented in a draft recommendation and a study, were
submitted to the Working Party's Group of Experts on Data Requirements
and Documentation which discussed them at its eighteenth and nineteenth
sessions. The Group of Experts forwarded the draft Recommendation to the
Working Party at its ninth session in March 1979 when it was adopted.
Recommendation
The Working Party on Facilitation of International Trade Procedures,
Being aware that the requirement for signature is tied
to the use of paper documents and that the increasing use of electronic
or other automatic means of data transfer makes it desirable to find new
ways of securing the data and identifying their source;
Noting that the study annexed to the Recommendation shows
the possibility of replacing signatures by different alternative methods
of authentication, as evidenced by Article 14 (3) of the United Nations
Convention on the Carriage of Goods by Sea, 1978 (Hamburg Rules), and of
replacing paper documentation by any other means which would preserve a
record of data transfer, as evidenced by Article 5 (2) of the Montreal
Protocol No. 4 to the Warsaw Convention on International Carriage by Air;
Recommends to Governments and international organizations
responsible for relevant intergovernmental agreements to study national
and international texts which embody requirements for signature on documents
needed in international trade and to give consideration to amending such
provisions, where necessary, so that the information which the documents
contain may be prepared and transmitted by electronic or other automatic
means of data transfer, and the requirements of a signature may be met
by authentication guaranteed by the means used in the transmission; and
Recommends to all organizations concerned with the facilitation
of international trade procedures to examine current commercial documents,
to identify those where signature could safely be eliminated and to mount
an extensive programme of education and training in order to introduce
the necessary changes in commercial practices.
At the ninth session of the Working Party representatives attended from:
Austria; Belgium
; Bulgaria; Canada;
Czechoslovakia; Denmark; Finland;
France; German Democratic Republic;
Germany, Federal
Republic of; Hungary;
Netherlands ; Norway;
Poland;
Romania; Sweden;
Switzerland; Turkey;
Union of Soviet Socialist Republics; United
Kingdom of Great Britain and Northern Ireland, and United
States of America; and from Australia,
Japan and Kenya.
The following specialized agencies, intergovernmental and non-governmental
organizations were also represented:
United Nations Food and Agriculture Organization
(FAO);International Maritime Consultative
Organization (IMCO); General
Agreement on Tariffs and Trade (GATT);
European Economic Community (EEC);
Customs Co-operation Council (CCC); International
Chamber of Commerce (ICC); Central Office for International Railway
Transport (OCTI); International Road Transport
Union (IRU); International Union of
Railways (UIC); International Organization
for Standardization (ISO); International
Chamber of Shipping (ICS); International
Railway Transport Committee (CIT); International
Federation of Freight Forwarders Associations (FIATA) and International
Cargo Handling Co-ordination Association (ICHCA).
1. It has long been a requirement in international trade that certain
of the documents which are necessary for a transaction should be signed.
There is now an increasing trend away from paper documentation to electronic
or other automatic means of transmission of information to be exchanged.
When information is sent by these means, it is not possible to transmit
a signature as such. The view has been put forward that the absence of
a signature reduces the value or authenticity of the information, and that
machine-transmitted information is not acceptable, unless substantiated
by a signed document. The requirement of signature can clearly be an obstacle
to trade facilitation.
2. This study, which is in two parts, first defines a signature and
its purpose in the context of international trade documentation giving
the background to current requirements for a handwritten signature. It
then examines modern alternative methods, stating the case of acceptance
of information without a signature.
Part I - Background to Current Requirements
for a Handwritten Signature
Definition of "signature"
3. "Signature" has been defined on many occasions, and a number of definitions
given in legal and literary dictionaries are shown in Annex
I. Nearly all definitions require that the signatory write his name
by hand. In court hearings the decision as to what constitutes a signature,
is a question of fact which the judge decides himself. Some legal decisions
about what constitutes a signature, taken from Belgian jurisprudence, are
shown in Part 2 of Annex I.
Although the United Nations Convention on the Carriage of Goods by Sea,
1978 (Hamburg Rules), states in Article 14 (3) that a signature may be
in handwriting, printed in facsimile, perforated, stamped, in symbols or
made by any other mechanical or electronic means (if not inconsistent with
relevant national law), this study is based on the generally-accepted meaning
given to the word in international trade and legal circles.
Function of signature
4. A signature on trade documents serves three main purposes:
-
(i) It identifies the source of the document, i.e. the writer;
-
(ii) It confirms the information in the documents; and
-
(iii) It constitutes proof of the signatory's responsibility for the correctness
and/or completion of the information in the document.
The signature gives an element of proof which virtually amounts to undisputed
legal validity of the document and the data transferred. Whereas the formal
requirement is for a signed document, the essential function is that of
authentication of data content. The need for verification may in certain
cases also lead to requirements of composite authentication - that is to
say, not only is the signature of the responsible part required, but also
a signed declaration by some official or semi-official body endorsing the
signature.
Requirement of signature
5. A signature may be required by virtue of a formal legal requirement,
either in national law or international convention. It may serve a specific
purpose, or the requirement may simply be based on commercial practice.
Where there is a mandatory requirement, a signature is needed unless the
law is amended or repealed. In order to make data transferred by electronic
means acceptable as valid documents in law, the signature must be replaced
by an alternative method of authentication.
6. In general, the following interests are affected: (a) commercial,
(b) transport, (c) financial, and (d) official. Problems arise mainly with
"documents that travel", often called "shipping documentation", i.e. documents
that transfer data which are only available at dispatch and which are necessary
for the clearance of goods at destination. Certain documents which actually
accompany the goods, such as the ships' manifest or dangerous goods documentation,
may not constitute problems. It should also be recalled that the information
in some documents may be of interest to more parties than the originator
and final recipient of the documents.
Commercial documents
7. The main principle of international trade law is that there is no formal
requirement for a signature. Subject to an exceptional requirement of signature
in national law, documents required for the practical performance of a
contract, such as a commercial invoice, or a certificate regarding quality
and quantity, need not therefore be signed. The parties concerned are mainly
interested in identification of the documentation and verification of data
content, which can be obtained from other sources and are not dependent
on a signature. The same is true for the shipping advice/notification called
for in most trade terms. There is therefore no reason to include a requirement
of signature in the requirements for commercial information which is now
often the case. Even if old habits are difficult to change, re-education
is clearly the answer to this problem.
Transport documents
8. Some international conventions prescribe signatures on transport contracts.
Others, like the CIM for transport by rail, have dropped this requirement,
which would seem to indicate that here is no legal need for authentication
in such a document, except in instances where a signature is required by
national law. The problem can then only be solved by action on the lines
mentioned in paragraph 4 above, such as repeal of the legal requirement
or the acceptance by the relevant authorities of data produced by electronic
or other automatic means. In transport the position is, however, further
complicated by the number of parties involved apart from the carriers themselves:
exporters, importers, financiers, insurers and authorities. There would
also appear to be several functions involved which give rise to demands
for signed documents:
-
(a) evidence of the contractual undertaking of transport;
-
(b) evidence that goods have been accepted for transport;
-
(c) evidence of details of the goods transported; and
-
(d) evidence that the goods have been received in good condition.
As mentioned in paragraph 3 above it is, rather, the verification of the
data content conveyed by the signature than the signature per se that is
needed, and various alternative methods of meeting this need are described
in Part II of the present study.
9 The (negotiable) bill of lading poses a special problem since it constitutes
a transport contact which is also a negotiable document of title. This
is the classic example of a document which travels and which is of interest
to parties other than the originator and the final recipient. There is
no immediate, obvious solution to the legal problems involved. The best
way to make possible the use of modern methods of data transmission in
sea transport is to make the parties consider whether their commercial
relations are such that they could replace the bill of lading by a non-negotiable
transport document. Experience shows that such documents are an acceptable
alternative in many instances.
Financial documents
10. Requirements for the authentication of financial documents such as
letters of credit are outside the scope of this study, although problems
could be created by the specific documentary provisions of the credit.
The need to verify whether insurance is in force for a particular shipment
could, in certain circumstances, lead to the need for a signed document.
However, the growing trend for exporters themselves to make out insurance
certificates under cover of a general policy and the availability of alternative
methods of ensuring that adequate cover exists may lead to a reduction
of this particular requirement. As an example, there is a growing tendency
on the part of major exporters merely to state that cover has been effected
under a blanket arrangement, without any specific document being issued
in respect of individual shipments.
Official documents
11. It would seem that the main need for authentication and acceptance
of responsibility to meet official demand occurs at import in the country
of final destination. These needs, however, often have a direct bearing
on action in the country of purchase at the time of dispatch, or subsequently.
Import procedures are usually based on a compulsory form which incorporates
a declaration to be made by the importer or his agent, and thereby constitutes
a legal undertaking of responsibility. Since this document is created and
signed in the country of importation, it does not necessarily in itself
constitute an obstacle to international trade facilitation. Moreover, there
is a trend towards the speed removal of goods from the place of importation,
under simplified documentation, associated with physical examination of
the goods in inland premises when the complete documentation is available.
This in itself is a great step forward in Customs facilitation. Nevertheless,
the position is often complicated by demands for supporting documents,
most of them "documents that travel", such as certificates or invoices.
12. Customs authorities in some countries insist on a signed invoice,
in the form of a commercial invoice, a consular invoice or a so-called
Customs invoice. Where there is a legal requirement for a signed invoice,
the need for such a document can only be overcome by the repeal of the
relevant regulation. In other instances, import authorities, who have wide
discretionary powers, may themselves educate traders and promote procedures
to facilitate trade. The work in the Customs Co-operation Council contributes
effectively to this objective.
Note: In May 1979 the Customs Co-operation Council adopted a Recommendation
concerning Customs Requirements regarding Commercial Invoices; the Recommendation
intends, on the one hand, to encourage Customs authorities to accept commercial
invoices produced by any process, including the one- rune method and, on
the other, to induce Customs administrations to waive the requirement of
a signature, for Customs purposes, on the commercial invoice which must
be presented to Customs in support of the goods declaration. The Recommendation
is reproduced in Annex II.
It must be said, however, that clearance procedures are often complex.
The Customs authorities must not only be satisfied as to the identity and
content of the goods but also as to the relevant economic criteria to be
applied. In addition, they are often requested to examine goods to ensure
that they meet requirements laid down for a variety of "non-Customs" reasons,
such as health or safety. However, as to signatures, it would seem to be
perfectly possible to solve the problem by the use of alternative methods.
Signature and proof
13. If it is perfectly possible to envisage replacing the signature, why
are people still so attached to it? The explanation may be found in the
value of proof which a signature provides. Documents produced before a
Court of Law are only legally valid in so far as they are acknowledged
by the person said to have signed them. A handwritten signature can be
particularly useful in this respect. While forgeries are possible and a
person may refuse to recognize a signature, it must be said that it is
more difficult to deny responsibility for a document which bears a signature
than for one which does not.
14. Whilst a signature is not usually indispensable on commercial documents,
it is quite often required for official purposes. Because there are so
many different national provisions, participants in international trade
- fearing nonfulfillment of possible requirements - play safe by putting
a signature on most documents. The guarantees thought to be provided by
a signature mean that they are frequently used also on commercial documents,
although less frequently, perhaps, when the parties are well known to each
other.
Summary of Part I
15. It may be seen from the above that signatures are widely used, and
will continue to be used, for a variety of reasons;
-
(i) on commercial documents: mainly to secure proof in a Court of Law,
often to comply with existing (or presumed) requirements in national trade
laws;
-
(ii) on transport documents: often to comply with existing national and/or
international provisions requiring signatures on transport contracts and
other transport documents;
-
(iii) on official documents: generally to secure proof of data content
by identification of a (legal) person responsible for the information as
provided
16. The usage or the requirement of a signature presents major problems
for modern high-technology data transfer in those instances where the data
are transmitted from the country of purchase to the country of (final)
destination and where the signature must be available at the clearance
of the goods. National legislation and international conventions should
be changed wherever they impose signature as a guarantee for the authenticity
of information transmitted in this way. As to other data, they are normally
transmitted on paper inside the country where the information is available
(country of dispatch, country of final destination) and the usage or requirement
of signatures has not until now been viewed as a constraint preventing
the use of economic high-technology data transfer in trade transactions.
This is, however, expected to change within the foreseeable future, and
a review of the use of signatures should be made by those responsibles
and concerned. Already a number of business relationships do not need to
rely on signatures - partners who have established trust between themselves
need not wait to introduce modern procedures for transactions guaranteed
by means other than signatures.
Part II - Alternative Methods
17. The requirement for a signature is tied to the use of paper documents.
The increasing use of electronic and other automatic methods of data transfer
means that the new ways of guaranteeing the data and their source need
to be found. Some international conventions and other intergovernmental
agreements have been adapted - or initially drafted - taking these developments
into account. Extracts from some relevant texts are reproduced in Annex
II.
The methods available
18. There are several methods of instantaneous communications, some of
which are already widely used. The following comments can be made concerning
the most important:
(a) Telex: the answerback system seems to give adequate security
for identification of the source of the data and acceptance of the commitments.
Experience shows that problems often arise from incorrect data transmission;
error rates need to be reduced.
(b) Remote copying: this method is already in use but can be
costly and time-consuming. Recent technical improvements show that transmission
times can be reduced significantly, and there is evidence of increased
usage of this means. In time, this may become a major alternative method.
(c) Magnetic tape transfer: use of this method is steadily growing,
with proven reliability for both in-house systems and inter-company information
exchange.
(d) Computer-to-computer transfer: this method is becoming more
acceptable and reliable. With the development of packet switched networks
on an international scale, often using PTT provided facilities and protocols,it
seems likely that this will become the standard method of electronic data
transmission in international trade.
(e) Computer print-outs: there are interesting possibilities
in an extension of the use of hard-copy print-outs at points of export
and import.
Security of data
19. Generally speaking, electronic and other automatic methods provide
a highly accurate and reliable means of data transfer. Data can be safeguarded
by ensuring that access to the system is limited by the use of, for example,
passwords, code words, special badges, or other methods. It is certainly
true to say that these systems can provide a degree of reliability for
the content of the message which is as good as any traditional documentation.
Confidentiality of files is safeguarded by the methods mentioned. Identification
of the parties can be assured by means of pre-arranged codes.
Responsibility for data transmission
20. Apart from the access code mentioned above, the users of a system also
require to know the way in which to structure their messages. The conditions
of use of a system are often called "protocols". If the user accepts them,
he will be bound by the system and could be held responsible for the use
he makes of it. The acceptance of the conditions of use of the system could
be made in a properly-signed agreement between the parties, in which case
the proof before a Court of the transmission made in conformity with the
agreement would acquire the validity of duly signed documents. The system
would have to identify each user in an irrefutable manner. Where necessary,
it would also have to serve as proof of disputed identity of the source
of the message; the guarantee which it offers would need to be capable
of verification by a court or by an expert designated for this purpose.
It is possible that a computer log or inventory, which could be verified
to confirm its reliability, held by the system and listing reference proper
to each message and its source, would serve the purpose. If the log recorded
the full content of all messages handled by the system, security would
be enhanced, but this could be expensive and it might not be necessary
in every-day routine transactions.
21. A guaranteed and verifiable identification procedure, together with
a signed protocol, could provide proof in a Court of Law which would be
of as much value as a signature. It is not possible to ensure complete
protection against fraudulent intentions, but it may well be easier to
forge a signature than to falsify the identity of the source of a message
in a well designed computer system. However, the evidence held in the computer
records would need to be retained in case it were required for use in court
proceedings. Recent national data laws have a bearing on the retention
period, but in practice a period of five years would seem to be sufficient
for this purpose.
22. The kind of system described above has already been developed for
use in the S.W.I.F.T. system of data transmission. Further details may
be found in Annex III.
Conclusions
23. Signatures are used to identify and confirm data. They are readily
accepted as proof in Courts of Law. Where a formal obligation of signature
exists, a name will continue to be required until the obligation is abolished.
A valid replacement for signature can be offered by computer systems giving
verifiable guarantees as to the identity of the parties; these could commit
themselves to recognize messages exchanged by the system and to sign a
written agreement to this effect. Where insistence on a signature continues
to commercial practice, a process of education will be needed to make the
parties aware of the advantages of change.[Continued...]
Authentication
of Trade Documents by Means Other than Signature (cont.) |
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Recommendation No. 14, second edition, adopted by the Working
Party on Facilitation of International Trade Procedures, Geneva, March
1979 Source: TRADEWP.4/INF.63
[ Annex I - Definitions and Decisions ] [
Annex II - Extracts from Conventions]
[ Annex III - The S.W.I.F.T. System ]
Annex I
Part I - Signature Definitions
-
(a) Name of a person, written by his hand put at the end of a letter, a
contract or any document whatever in order to certify it, to confirm it,
to make it valid.
-
Dictionary, French Academy, p. 588.
-
(b) The signature is the name of a person written by his hand, at the end
of a letter or a document, to certify it, to confirm it or to make it valid.
-
Les Pandectes belges, p. 817.
-
(c) The name of a person (or significant mark - obsolete) written with
his hand (or her) as an authentication of some documents of writing (to
authenticate = to give legal validity).
-
Oxford Dictionary, p. 1892.
-
(d) To sign signifies writing one's name with one's own hand at the bottom
of a document to prove it and to convey an obligation to do what it implies
or to attest it.
-
Ferriere, Law Manual, cited in Belgian law first part, p. 114.
-
(e) The entry which a person makes of his name (in a particular or regular
manner) to confirm the correctness, the genuineness of a writing, or to
take responsibility for it.
-
A signed agreement.
-
Petit Robert, p. 1649.
-
(f) The signature of a person, written by his hand, at the bottom of a
document, or a deed.
-
Littré, p. 155.
-
(g) Name or mark which one puts at the bottom of something written, to
certify that one has written it or that one agrees with the content.
-
Larousse Lexis, p. 1893.
Part II - Some Legal Decisions of Signatures take
from Belgian Jurisprudence
(a) The written signature cannot consist of a finger print, or an initial
(Brussels 27.1.1807), a mark (stamp) (Colman 23.12.1809), a cross (Bourges
27.11.1971).
-
(b) The signature of a married woman represented by the name of her husband,
signature under an assumed name (pseudonym) or by a commercial name, or
by means of a facsimile seal can be admitted as a valid signature. Whether
that holds good equally for the initial is doubtful, but a cross, a finger
print, seal, stamp with printed letters or a name impressed or struck are
certainly not a signature.
-
Winkler Prins, tome 9, p. 105.
-
(c) If in the matter of testament the signature can be made up by a customary
personal mark, it cannot be the same under Article 1347.
-
(literal proof) Jurisprudence belge, first part, p. 114.
-
(d) When the name is readable, correct and complete the signature exists,
whether the manner is usual or not for the signatory. But it is necessary
that it can be considered as constituting the characters of writing, otherwise
it is reduced to a simple mark. An incomplete name is a signature, if the
writer has the habit of signing in this way. A mark, a cross or other arbitrary
symbols, even when often used by the person concerned, are not a signature.
But practically speaking, certain dispositions are accepted.
-
Les Pandectes belges, p. 823/4.
-
(e) The Law holds a special status for signature as far as proof is concerned.
"The signature is the external form of a consent, or desire, or approval"
-
Les Pandectes belges, p. 833/4.
-
The will of the legislator is to bind the signatory by the very fact of
his signature, and having made his own the declarations in the act.
-
Cassation belge, 30. 04. 1942.
-
(f) "A recorded tape, constituting a known fact from which the judge can
draw a conclusion, can be invoked by him as a presumption."
-
Cassation belge, 24. 11. 1961.
-
(g) Formulation by the Court of Appeal at Algiers is interesting in this
regard (18.12.1931): "Given that the authors of the Civil Code were not
able to make provisions for all kinds of representation of thought that
can be brought about by the progress of science; one should therefore interpret
the word "written" in a broad and comprehensive manner."
Annex II
Extracts from Conventions, Draft Conventions, Intergovernmental
and Other International Recommendations Relevant for the Study of Signatures/Authentication
in Trade Documents
1. The texts reproduced below refer to:
-
I... Air transport
-
II.. Sea transport
-
III. Multimodal transport
-
IV. Transport of dangerous goods
-
V.. Customs clearance
-
VI. Sale of goods and formation of contracts
-
VII. Payments
2. They are reproduced from documents available in the ECE secretariat
at the end of 1979. It should be noted that several of the texts referred
to are not yet operational, e.g. the Montreal Protocol and the Hamburg
Rules have not yet entered into force and the draft conventions on multimodal
transport and the international sale of goods have not yet been signed.
3. It can also be noted that different terms have been used to describe
the same occurrence in the rules agreed by different organizations to deal
with the new problems created by modern data transmission techniques. Examples
are:
-
- electronic data processing techniques ...;
-
- any other means which would preserve a record of the carriage ...;
-
- any other mechanical or electronic means ...;
-
- documentation by manual, electronic or other automatic means ...;
-
- telephone, telex or other means of instantaneous communication ...; and
-
- communication by electronic systems ...
4 In documents issued by the Working Party on Facilitation of International
Trade Procedures, expressions such as "transmission of information by electronic
or other automatic means" and "electronic or other automatic methods of
data transfer" are generally used, the reason being that trade data are
still often processed automatically, but not by electronic means, and that
future instantaneous data transfer systems may not always use electronic
devices. For the same reason, "automatic data processing (ADP) is preferred
to "electronic data processing" (EDP) in such documents.
I. Air Transport
International Civil Aviation Organization (ICAO)
-
"B. Electronic Data-Processing Techniques
4.4 RECOMMENDED PRACTICE. - Contracting States should make arrangements
which would enable the use of commercial documents required for the clearance
of air cargo produced by electronic data-processing techniques in legible,
understandable, and acceptable form.
4.5 RECOMMENDED PRACTICE. - Contracting States should examine, in close
collaboration with international operators and others concerned with air
cargo, the additional facilitation which can be derived from the application
of electronic data-processing techniques and consider introducing such
techniques where the volume of air cargo warrants.
4.6 RECOMMENDED PRACTICE. - When the introduction of electronic data-
processing techniques is planned in a Contracting State for controlling
the movement of import/export air cargo, that State should endeavour to
apply the following principles:
-
(i) existing control requirements and procedures should be examined with
a view to their modification as necessary;
-
(ii) all interested parties should, from the outset, be afforded the opportunity
for consultation;
-
(iii) close attention should be given to the need for ensuring that the
new system is compatible with those in existence at its airports or being
developed at airports in other States; and
-
(iv) close attention should be given to the possibility of accepting the
information necessary for the receipt, loading, discharge, delivery and
clearance of air cargo prepared and transmitted by electronic data-processing
techniques."
-
(Chapter 4 of Annex 9, "Facilitation", to the Convention on International
Civil Aviation (Chicago, 1944), Seventh edition, April 1974)
"Section III. - Documentation relating to cargo
Article 5
1. In respect of the carriage of cargo an air waybill shall be delivered.
2. Any other means which would preserve a record of the carriage to
be performed may, with the consent of the consignor, be substituted for
the delivery of an air waybill. If such other means are used, the carrier
shall, if so requested by the consignor, deliver to the consignor a receipt
for the cargo permitting identification of the consignment and access to
the information contained in the record preserved by such other means.
3. The impossibility of using, at points of transit and destination,
the other means which would preserve the record of the carriage referred
to in paragraph 2 of this Article does not entitle the carrier to refuse
to accept the cargo for carriage.
Article 6
1. The air waybill shall be made out by the consignor in three original
parts.
2. The first part shall be marked, "for the carrier"; it shall be signed
by the consignor. The second part shall be marked, "for the consignee";
it shall be signed by the consignor and by the carrier. The third part
shall be signed by the carrier and handed by him to the consignor after
the cargo has been accepted.
3. The signature of the carrier and that of the consignor may be printed
or stamped.
4. If, at the request of the consignor, the carrier makes out the air
waybill, he shall be deemed, subject to proof to the contrary, to have
done so on behalf of the consignor.
-
(Montreal Protocol No. 4 to amend the Convention for the Unification
of Certain Rules relating to International Carriage by Air (Warsaw 1929;
Montreal 1975)
II. Sea Transport
Inter-governmental Maritime Consultative Organization
(IMCO)
"7. Electronic and other automatic processing of documents,
Add to standard 2.15 the following text:
Documents produced by electronic and other automatic data processing
techniques, in legible and understandable form shall be accepted."
-
Final Act of the Conference of Contracting Governments to amend the
Annex to the Convention on Facilitation of International Maritime Traffic,
1965 (November 1977)
United Nations Commission on International
Trade Law (UNCITRAL)
"Article 1 - Definitions
8. "Writing" includes, inter alia, telegram and telex.
Article 14 - Issue of bill of lading
1. When the carrier or the actual carrier takes the goods in his charge,
the carrier must, on demand of the shipper, issue to the shipper a bill
of lading.
2. The bill of lading may be signed by a person having authority from
the carrier. A bill of lading signed by the master of the ship carrying
the goods is deemed to have been signed on behalf of the carrier.
3. The signature on the bill of lading may be in handwriting, printed
in facsimile, perforated, stamped, in symbols, or made by any other mechanical
or electronic means, if not inconsistent with the law of the country where
the bill of lading is issued."
-
(United Nations Convention on the Carriage of Goods by Sea (Hamburg,
1978)
III. Multimodal Transport
United Nations Conference on Trade and Development
(UNCTAD)/IPG
"Part III. Draft provisions on documentation
Definition of the MT document
Draft provision A
"Multimodal transport document" means a document which evidences a multimodal
transport contract, the taking in charge of the goods by the multimodal
transport operator, and an undertaking by him to deliver the goods in accordance
with the terms of that contract.
Issuance of the MT document
Draft provision B
1. When the goods are taken in charge by the multimodal transport operator,
he shall [, on demand of the consignor,] issue a multimodal transport document,
which, at the option of the consignor, shall be in either negotiable or
non-negotiable form.
2. The multimodal transport document may be signed by the multimodal
transport operator or by a person having authority from him.
3. The signature of the multimodal transport document may be in handwriting,
printed in facsimile, perforated, stamped, in symbols, or made by any other
mechanical or electronic means, if no inconsistent with the law of the
country where the multimodal transport document is issued.
[4. Any other means which would preserve a record of the carriage to
be performed may with the consent of the consignor be substituted for the
issuance of the multimodal transport document. If such other means are
used, the multimodal transport operator shall, of so requested by the consignor,
deliver to the consignor a receipt for the goods permitting identification
of the consignment and access to the information contained in the record
preserved by such other means.]"
-
(Preliminary draft of a Convention on International Multimodal Transport,
document TD/B/AC.15/50 (November 1978)
IV. Transport of Dangerous Goods
United Nations Economic and Social Council
(ECOSOC)
"Chapter 13. Recommendations on consignment procedures
1. This Chapter sets forth the recommended procedures for dangerous
goods shipments relative to marking, labelling, documentation by manual,
electronic or other automatic means and placarding."
-
Recommendation (December 1978) of the United Nations/ECOSOC Committee
of Experts on the Transport of Dangerous Goods)
V. Customs Clearance
Customs Co-operation Council (CCC)
1. The Customs Co-operation Council, on 16 May 1979, adopted a Recommendation
concerning Customs requirements regarding commercial invoices.
2. The above-mentioned Recommendation is intended, on the one hand,
to encourage Customs authorities to accept and, on the other, to induce
Customs administrations to waive the requirement of a signature, for Customs
purposes, on the commercial invoice which must be presented to Customs
in support of the Goods declaration.
3. The Recommendation is worded as follows: "THE CUSTOMS CO-OPERATION
COUNCIL
DESIRING to facilitate international trade by making it
possible for trade circles to employ modern methods of data reproduction
and transmission;
TAKING INTO ACCOUNT, inter alia, the efforts being made
at the international level to enable all the documents required for an
international trade transaction to be prepared from a single master by
the one-run method;
TAKING INTO ACCOUNT the Recommendation concerning signatures
and authentication adopted in March 1979 by the Working Party on Facilitation
of International Trade Procedures of the Economic Commission for Europe,
which notes in particular that the general adoption of mechanical or electronic
methods of data transfer requires changes in current practice regarding
handwritten signatures;
CONSIDERING that the requirement of a signature on the
commercial invoice for Customs purposes does not afford the Customs any
particular guarantee of its accuracy;
RECOMMENDS that Members should:
1. accept commercial invoices produced by any process, for example,
the one-run method, in cases where the presentation of the commercial invoice
is required in connection with the clearance of goods;
2. refrain from requiring a signature, for Customs purposes, on commercial
invoices presented in support of a Goods declaration;
REQUESTS Members who accept this Recommendation to notify
the Secretary General of their acceptance, of the date from which they
will apply the Recommendation, and of the conditions of its application.
The Secretary General will transmit this information to the Customs administrations
of Members."
VI. Sale of Goods and Formation of Contracts
United Nations Commission on International
Trade Law (UNICTRAL) "Article 10
A contract of sale need not be concluded in or evidenced by writing
and is not subject to any other requirements as to form. It may be proved
by any means, including witnesses.
Article 11
Any provision of Article 10, Article 27 or Part II of this Convention
that allows a contract of sale or its modification or abrogation or any
offer, acceptance, or other indication of intention to be made in any form
other than in writing does not apply where any part has his place of business
in a Contracting State which has made a declaration under Article (X) of
this Convention. The parties may not derogate from or vary the effect of
this Article.
Article (X)
A Contracting State whose legislation requires a contract of sale to
be concluded in or evidenced by writing may at the time of signature, ratification
or accession make a declaration in accordance with Article 11 that any
provision of Article 10, Article 27, or Part II of this Convention, which
allows a contract of sale or its modification or abrogation or any offer,
acceptance, or other indication of intention to be made in any form other
than in writing shall not apply where any party has his place of business
in a Contracting State which has made such a declaration.
Article 18
(1) A period of time for acceptance fixed by an offeror in a telegram
or a letter begins to run from the moment the telegram is handed in for
dispatch or from the date shown on the latter or, if no such date is shown,
from the date shown on the envelope. A period of time for acceptance fixed
by an offeror by telephone, telex or other means of instantaneous communication,
begins to run from the moment that the offer reaches the offeree.
(2) If the notice of acceptance cannot be delivered at the address of
the offeror due to an official holiday or a non-business day falling on
the last day of the period for acceptance at the place of business of the
offeror, the period is extended until the first business day which follows.
Official holidays or non-business days occurring during the running of
the period of time are included in calculating the period.
Article 19
(1) A late acceptance is nevertheless effective as an acceptance if
without delay the offeror so informs the offeree orally or dispatches a
notice to that effect.
(2) If the letter or document containing a late acceptance shows that
it has been sent in such circumstances that if its transmission had been
normal it would have reached the offeror in due time, the late acceptance
is effective as an acceptance unless, without delay, the offeror informs
the offeree orally that he considers his offer as having lapsed or dispatches
a notice to that effect.
Article 22
For the purpose of Part II of this Convention an offer, declaration
of acceptance or any other indication of intention "reaches" the addressee
when it is made orally or delivered by any other means to him, his place
of business or mailing address or, if he does not have a place of business
or mailing address, to his habitual residence.
Article 32
If the seller is bound to hand over documents relating to the goods,
he must hand them over at the time and place and in the form required by
the contract."
-
(UNCITRAL, Draft Convention on Contracts for the International Sale
of Goods (June 1978; text integrating the draft Convention on the Convention
on the International Sale of Goods)
VII. Payments
International Chamber of Commerce (ICC)
"Article 4 Banks concerned with a collection assume no
liability or responsibility for the consequences arising out of delay and/or
loss in transit of any messages, letters or documents, or for delay, mutilation
or other errors arising in the transmission of cables, telegrams, telex,
or communication by electronic systems, or for errors in translation or
interpretation of technical terms."
-
(ICC Uniform Rules for Collection (latest revision 1979, publication
No. 322)
Annex III
The System of Data Transmission of the Society for
Worldwide Interbank Financial Telecommunications S.C. (S.W.I.F.T.)
The S.W.I.F.T. system has been devised to give participating banks access
to an international computerized financial network, which provides a communication
service for the transmission of banking messages previously sent by mail,
telex or cable. It was devised for the foreign exchange business where
speed of performance is essential.
-
S.W.I.F.T. identifies both the sender and the recipient of messages.
-
S.W.I.F.T. keeps an inventory of the information exchanged.
Users sign a protocol which provides, inter alia:
"In connection with its participation in the company, the undersigned
furthermore declares that it is prepared to co-operate with the members
of the company and with the users of the system of the company which will
be connected to the same concentrator as the undersigned in order to
make and keep operative the system of the company and to see to it
that its foreign branches and its organizations as defined under Article
3 of the said General Terms will act accordingly."
The "co-operation in order to make and keep operative the system" which
is mentioned in the undertaking leads to the acceptance of the rules of
operation laid down by the system and, in this way, of the content of the
messages.
The information transmitted is coded with the help of a hexadecimal
key known only by the parties who are exchanging information and transforming,
by means of a software routine, each position which forms a part of the
message (the key guarantees the confidentiality of the content of the message
during transmission).
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