The text of the ETDA contains seven clauses[1], which can be summarised as follows:
|
Clause 1 |
Contains a definition of "paper trade document", and sets out the criteria that a document must satisfy in order to qualify as a "paper trade document". It also sets out a non-exhaustive list of trade documents[2] that are commonly used in connection with trade in, or transport of, goods, or financing such trade or transport. This clause effectively sets the scope for the types of trade document that could be encompassed by the ETDA. |
|
Clause 2 |
Contains a definition of "electronic trade document", and sets out the criteria that a trade document in electronic form must satisfy in order to qualify as an "electronic trade document", and to therefore be capable of possession under the ETDA. |
|
Clause 3 |
Provides for the possession and indorsement of electronic trade documents. It also provides that an electronic trade document has the same effect as an equivalent paper trade document, and that anything done in relation to an electronic trade document has the same effect (if any) as it would have in relation to an equivalent paper trade document. |
|
Clause 4 |
Provides for a change of medium or form; that is, the conversion of a paper trade document into an electronic trade document, or an electronic trade document into a paper trade document. |
|
Clause 5 |
Contains an "opt-out" provision which, if applicable, will mean that clauses 3 and 4 of the ETDA will not apply to the relevant electronic trade document. |
|
Clause 6 |
Is the consequential amendments clause, and sets out an amendment to the Bills of Exchange Act 1882, and provides for the repeal of certain provisions of the Carriage of Goods by Sea Act 1992. |
|
Clause 7 |
Sets out the territorial extent of the ETDA, the commencement date and the short title. |
UN Model Law on Electronic Transferable Records (MLETR)
Outside the UK, ongoing initiatives to address this issue include the MLETR, which was published in 2017.[3]
The MLETR, article 7(1), includes the general provision that an electronic transferable record shall not be denied legal effect, validity or enforceability on the sole ground that it is in electronic form.
The ICC had previously urged governments to align with, or adopt, the MLETR, in order to facilitate the widespread use of electronic trade documents
On 28 April 2021, the G7 digital and technology ministers declared they would work together to develop compatible domestic reforms to allow the use of electronic transferable records.
The declaration made clear that the initiative would "champion the work" of the UNCITRAL and "promote" the adoption of legal frameworks "compatible" with the MLETR.[4]
The purpose of the MLETR provides a perfect synergy with that of the ETDA[5]:
"The Model Law on Electronic Transferable Records (MLETR) aims to enable the legal use of electronic transferable records both domestically and across borders. The MLETR applies to electronic transferable records that are functionally equivalent to transferable documents or instruments."
As a model law, MLETR is "a suggested pattern for lawmakers in national governments to consider adopting as part of their domestic legislation".[6]
[1] https://bills.parliament.uk/Publications/47902/Documents/2302
[2] bill of exchange; promissory note; bill of lading; ship's delivery order; warehouse receipt; mate's receipt; marine insurance policy; cargo insurance certificate.
[3] https://uncitral.un.org/en/texts/ecommerce/modellaw/electronic_transferable_records
[4]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/981567/G7_Digital_and_Technology_Ministerial_Declaration.pdf
[5] https://uncitral.un.org/en/texts/ecommerce/modellaw/electronic_transferable_records
[6] https://uncitral.un.org/en/about/faq/texts