Re: confusion on where to discuss trading partners

["Winchel 'Todd' Vincent, III" <winchel@mindspring.com>]

> I'm not sure that TR&P will be functional without the TPA.
> That's where all the gory details are kept regarding
> where and how.
>
> Chris
>
> richard drummond wrote:
> >
> > my overall take on this is that the transport should be usable with out
the
> > tpa, in a degraded mode maybe. pass that i have not thought about it
enough
> > to make a suggesting or a determination on what i believe is
appropriate...
> > rik

My understanding of ebXML's scope is that it is attempting to cast a broad
net to encompass many different types of transactions.  I also understand
that there is a legacy of EDI thought in this group.  Building on past EDI
work for XML is a good thing, but too much reliance on old thought is a bad
thing.

In Legal XML, we used a metaphor of an "Envelope" and a "Document" which I
find very useful, if only because the names are very intuitive and
requirements jump out at you by analogy.  We created a *generic*
<LegalEnvelope>.  The idea behind the "Envelope" was that *any* legal
document could be contained within it (just as it is today).

The TR&P specification looks a lot like an "Envelope" to me.  However, there
is not a separation of ideas/information and, probably, business practices
between the "Envelope" and the "Trading Partner Agreement".  A trading
partner agreement is simply a type of contract.  What happens when you want
to put a court filing (motion, complaint, judgment, etc.) in an envelope?
What about a transcript.  What about an e-prescription?  An e-check>  An
e-purchase order?  Etc?  A generic envelope is good.  Limiting that envelope
to the transport of only one type of document is bad.

If ebXML wants to have the broad scope that is desires (and should have, in
my view, given no other group has stated a desire to cast such a wide net),
then it must think more generically than trading partner agreements (at
least in terms of an "envelope").  To be sure, there is a lot of generic
information in an EDI trading partner agreement.  But, the generic must be
separated from the specific, so other specific types of "documents" can be
sent in the envelope.

Please see:

http://www.legalxml.org/CourtFiling/  (The July 24th spec).

Also, I emailed a couple legal/e-commerce mailing lists and received the
following responses about Trading Partner Agreements:

<JeffRitter>
Todd, I hope this note finds you well.  I would be pleased, as the Reporter
for the ABA model trading partner agreement and a co-rapportuer on the UN
Model Interchange Agreement, to provide the background and some pointers
toward suitable resources.  <snip/> But, as to the word "trading partner",
it had two early explanations.  First, EDI was generally used with
international trade--those engaged were trading partners. But a second,
perhaps more suitaable meaning emerged---the phrase refers to any one with
whom one is trading data.  The concept of partnership is invoked by virtue
of the collaborative, reciprocal steps required to establish a trustworthy
interchange relationship--it has many attributes of legal partnership but
is, of course, not the same.
</JeffRitter>

<RussSavage>
this is less a legal observation as a historical one

I believe Trading Partner goes back to the time when trade was a state
regulated activity - 16th & 17th century. So it began as much as a
treaty as a business agreement. Hudson Bay Trading Co. comes to mind,
operated by grace of the king of England (& needed permission to change
their charter or significant trading allies).
It's an alliance agreement in any event, perhaps a joint venture contract.
</RussSavage>

<MichaelMerchant>
Hello Todd, I don't have any information wrt the Trading Partner Agreements,
however wrt to your question re the use of the term "partner", the term does
have legal significance but the way contracting parties avoid problems with
the term is to always include a clause providing that the parties
relationship to each other is that of independent contractors and the
agreement does not create a partnership, joint venture, etc. and the parties
have no authority to bind each other etc.  (but if the term makes a party
nervous you can call it a teaming agreement, joint marketing or cooperation
agreement, etc.)  Hope this helps.  Cheers, Michael
</MichaelMerchant>

<JohnMuller>
Todd:  The most thorough discussion of EDI legal issues is in a report
published in the June 1990 edition of the Business Lawyer (which includes
the ABA Model Trading Partner Agreement itself).  The report was produced by
a Task Force chaired by Michael Baum, with Amy Boss and Jeff Ritter also
active, so the quality of the work is high.  I don't think it's online
anywhere, but you can order the report and Model Agreement from the ABA at
http://www.abanet.org/buslaw/catalog/5070258.html

Some good online sources to consult are:
http://www.cla.org/Publications/RuhBook/chp7.htm

http://www.saecrc.org/training/dodedi/edifun07.html

http://www.kkrlaw.com/articles/edi.htm

As to the use of the word "partner," I think it's simply a matter of the
lawyers being told by the business folks that "we refer to our suppliers as
our trading partners, it sounds warm and fuzzy," so the lawyers said OK and
we'll just put a clause in the Agreement saying that our relationship is not
a partnership even though we call them a Trading Partner.  As you know,
lawyers get to be like the Queen in Alice in Wonderland, a word means just
what we say it means.
</JohnMuller>



Hope this helps,

Todd
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