UNCITRAL : What is it ?Why should we be aware about it ? Following the United Nations Commission on InternationalTrade Law (UNCITRAL) Model Law on E-Commerce, theGovernment of India enacted the Information Technology Act inJune 2000. The Act facilitates E-commerce and E-Governance in thecountry. The Act also establishes a regulatory framework andlays down punishment regimes for different cyber crimes andoffences.
UNCITRAL : What is it ?Why should we be aware about it ? Adopted on 30 January 1997 It recommends inter alia that all States givefavorable consideration to the Model law whenthey enact or revise their laws in view of theneed for uniformity of the law applicable toalternatives to paper-cased methods ofcommunication and storage of information.
UNCITRAL : What is it ?Why should we be aware about it ? Recognizing the necessity to give effect tothe Resolution, and with an objective of promoting efficientdelivery of government services by meansof reliable electronic records,the Government of India enacted theInformation Technology Act in June 2000.
The UNCITRAL model law:background in many countries the existing legislation governingcommunication and storage of information wereinadequate or outdated because they did notcontemplate the use of electronic commerce. … many countries lacked in legislations for dealingwith E-commerce as a whole results in uncertaintyas to the legal nature and validity of informationpresented in a form other than a traditional paperdocument.… Inadequate legislation at the national level createdobstacles to international trade.
The UNCITRAL model law:background The purpose of Model law was to offer Nationallegislators a set of internationally accepted rules asto how a number of such legal obstacles may beremoved, and how a more secure legal environment may becreated for what has become known as electroniccommerce.…
E-Commerce in the UNCITRALModel Law Objectives of the Model Law:To facilitate rather than regulate electroniccommerceTo adapt existing legal requirementsTo provide basic legal validity and raiselegal certainty
Basic Principles of the Model Law Functional equivalence Analyze purposes and functions of paper-basedrequirements (“writing”, “record”, “signature”,“original”) Consider criteria necessary to replicate thosefunctions and give electronic data the same levelof recognition as information on paper
Basic Principles of the Model Law Media and technology neutralityEqual treatment of paper-based andelectronic transactionsEqual treatment of differenttechniques (EDI, e-mail, Internet,telegram, telex, fax)
Basic Principles of the Model Law Party autonomyPrimacy of party agreement onwhether and how to use e-commercetechniquesParties free to choose security levelappropriate for their transactions
Core Provisions of the UNCITRALModel Law Article 5 (Legal Recognition) Article 6 (Writing) Article 7 (Signature) Article 8 (Original) Article 9 (Evidence)Recall Indian Lawstalk about all these.. We will seeahead
Core Provisions of the UNCITRAL ModelLaw: Article 5 and 5 b is Information shall not be denied legaleffect, validity or enforceability solelybecause:it is in the form of a data message orIt is incorporated by reference
Core Provisions of the UNCITRALModel Law: Article 6 (Writing) Where the law requires information tobe in writing, that requirement is met bya data message if the informationcontained therein is accessible so as tobe usable for subsequent reference.
Core Provisions of the UNCITRALModel Law: Article 7 (Signature) Legal requirement is met in relation to adata message if: a method is used to identify the signatory andto indicate his approval of the informationcontained in the data message; and that method is as reliable as was appropriatefor the purpose for which the data messagewas generated or communicated.
Core Provisions of the UNCITRALModel Law: Article 8 (Original) Legal requirement is met by a datamessage if: there exists a reliable assurance as to theintegrity of the information from the time whenit was first generated in its final form, as a datamessage or otherwise; and information iscapable of being displayed to the person towhom it is to be presented.
Core Provisions of the UNCITRALModel Law: Article 9 (Evidence) In any legal proceedings, nothing in therules of evidence shall apply so as todeny the admissibility of a datamessage in evidence solely because itis a data message.
Other Provisions of the Model Law Article 11 (Use of data messages in contractformation) Article 12 (Non-repudiation) Article 13 (Attribution of data messages) Article 14 (Acknowledgement of receipt) Article 15 (Time and place of dispatch and receipt) Articles 16 and 17 (Electronic commerce andcarriage of goods)
Article 15 (Time and place ofdispatch and receipt) A data message is deemed to be sentwhen it enters an information systemoutside the control of the originator.
Article 15 (Time and place ofdispatch and receipt) A data message is deemed to be received:a) If the addressee has designated an informationsystem to receive the message, when the messageenters the designated system; orb) If the message is sent to an information systemother than the designated system, when theaddressee retrieves the message.
Article 15 (Time and place ofdispatch and receipt) If the addressee has not designated aninformation system, the message is deemedto be received when it enters an informationsystem of the addressee. Data messages are deemed to be sent at theplace where the originator has its place ofbusiness and received at the place where theaddressee has its place of business.
Overview of the Indian lawand it’sDeviation from UNCITRAL Model
Overview of the Indian lawThe objectives of the Information Technology Act, asoutlined in the preamble, are to• provide legal recognition for E-commerce transactions,facilitate Electronic Governance and• amend the Indian Penal Code, Indian Evidence Act 1872,the Bankers’ Book Evidence Act 1891 and the ReserveBank of India Act 1934.The Act also establishes a regulatory framework for cyberlaws and lays down punishment regimes for different cybercrimes and offences.
Overview of the Indian law Legal recognition for digital signatures. Electronic governance. Regulatory framework. Offences and penalties.
Some Deviations in Indian Law digital signatures and provisions relating to onlinecontracting.
Digital Signatures …. Deviations Model Law -- Article 7 The Information Technology Act mandates certaintechnical standards—that is, an asymmetric cryptosystem commonly known as‘public key encryption’ and ‘hash function’. [Section 3 ofthe Act] Certifying Authorities ….
Deviations in provisions relating toonline contracting. Model Law -- Article 11 the Indian Information Technology Act does nothave any express provision regarding thevalidity or formation of online contracts. The Indian Contract Act 1872 deals with thevalidity of contracts.
Deviations in provisions relating toonline contracting. It does not prescribe any particular methodfor the communication of offer andacceptance. Thus, there is no requirement of writing forthe validity of contracts, except in suchcases where the requirement of writing isspecifically mandated by law
References….. E-Commerce Law in Developing Countries: AnIndian Perspective ;By - C. M. ABHILASH Raising confidence in E-commerce: the legalframework ;By - UNCITRAL Secretariat, Vienna, Austria