Transcript Document

INTERNATIONAL SEMINAR/WORKSHOP ON
INTERMODAL TRANSPORT AND E-COMMERCE.
PAPER PRESENTED AT
HARMONISATION OF ELECTRONIC MARINE
TRANSPORT DOCUMENTS WITH UCP
AT PEARL CONTINENTAL HOTEL, LAHORE - PAKISTAN
ON 29TH – 30TH MARCH, 2004
BY
T.O. LEE
MANAGING DIRECTOR
T.O. LEE CONSULTANTS LTD.
TORONTO
HARMONISATION OF ELECTRONIC MARITIME
TRANSPORT DOCUMENTS WITH UCP 500
ALL ELECTRONIC TRADE SERVICE PROVIDERS ARE TRYING TO
PROMOTE THEIR SYSTEM/SOFTWARE AGGRESSIVELY IN THE HOPE
THAT ONE PARTICULAR SYSTEM/SOFTWARE WILL TAKE THE LEAD
FROM THE REST AND BECOMES AN INDUSTRY STANDARD IN THE
MARKETPLACE. THIS WOULD MEAN A GOLD MINE FOR THE SOFTWARE
DEVELOPER. TO BE SUCCESSFUL, THE SYSTEM/SOFTWARE MUST
HAVE THE FOLLOWING KEY ATTRIBUTES: OPEN, LOW COST, EASY TO
USE, SUITABLE FOR SME AS WELL AS GLOBAL CONGLOMERATES,
ACCOMMODATING DIFFERENT LEGISLATIONS, E.G. COMMON LAW &
CIVIL LAW COUNTIES, AND IN CASE OF DISPUTES, PROVIDING
EVIDENCES ACCEPTABLE TO ELECTRONIC ARBITRAL TRIBUNAL OR
COURTS.
AS FAR AS THE MARITIME TRANSPORT DOCUMENTS ARE CONCERNED,
WE HAVE PLAYERS LIKE BOLERO, TRADECARD, CCWEB, SWIFTNET
ETC. HOWEVER, NONE OF THESE HAS YET BECOME AN INDUSTRY
STANDARD UP TO THIS DATE.
TO BE MORE FOCUSED I HAVE TO NARROW DOWN TO ONLY AN
ELECTRONIC MARITIME TRANSPORT DOCUMENT USED FOR
PRESENTATION UNDER A LETTER OF CREDIT (L/C) SUBJECT TO THE
UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS 1993
REVISION (UCP 500) WHICH IS APPLICABLE TO PAPER TRADE. THE
VERSION FOR ELECTRONIC TRADE IS THE eUCP.
THE eUCP IS TECHNOLOGY NEUTRAL. SO ANY SYSTEM OR SOFTWARE
MAY BE USED.
TO AVOID CONFUSIONS, THE TERM "DOCUMENT" USED IN UCP 500 IS
REPLACED BY THE TERM "ELECTRONIC RECORD" IN eUCP.
IF A LETTER OF CREDIT ALLOWS ELECTRONIC PRESENTATION, IT MUST
STATE CLEARLY THAT IT IS SUBJECT TO eUCP.
THEN IT IS
AUTOMATICALLY SUBJECT TO UCP 500. PRESENTATION OF PAPER
DOCUMENT IS ALSO ALLOWED UNLESS SPECIFICALLY PROHIBITED IN
THE eUCP L/C. PRESENTATION OF A MIX OF ELECTRONIC RECORDS
AND PAPER DOCUMENTS IS ALSO ALLOWED UNLESS OTHERWISE
STATED. IF AN ELECTRONIC RECORD IS PRESENTED, IT WILL BE
EXAMINED FOR COMPLIANCE WITH eUCP, WHICH WOULD OVERRIDE
THE PROVISIONS OF UCP 500, IF ITS INTERPRETATION CREATES A
DIFFERENT RESULT.
FOR AN ELECTRONIC MARITIME TRANSPORT DOCUMENT, "SHIPPED ON
BOARD NOTATION", IF REQUIRED BY THE eUCP L/C, MUST BE STAMPED
OR SUPERIMPOSED ELECTRONICALLY.
THE ELECTRONIC MARITIME TRANSPORT DOCUMENT:-
1. MUST BE CAPABLE OF BEING AUTHENTICATED AS TO THE
APPARENT IDENTITY OF THE SENDER AND THE APPARENT SOURCE
OF THE DATA CONTAINED IN IT, AND AS TO WHETHER IT HAS
REMAINED COMPLETE AND UNALTERED AFTER THE TRANSMISSION.
OTHERWISE IT IS TREATED AS NOT RECEIVED.
2. MUST BE CAPABLE OF BEING EXAMINED FOR COMPLIANCE WITH
THE TERMS AND CONDITIONS OF THE eUCP L/C.
3. MUST BE PRESENTED IN THE FORMAT SPECIFIED IN THE eUCP L/C.
4. MUST IDENTIFY THE eUCP L/C UNDER WHICH IT IS PRESENTED.
OTHERWISE IT IS TREATED AS NOT RECEIVED. HENCE QUOTING
THE eUCP L/C NO. ON THE ELECTRONIC RECORD IS THE EASIEST
WAY TO MEET THIS REQUIREMENT.
PRESENTATION OF AN ELECTRONIC RECORD MAY BE
DONE:1. BY PROVIDING A HYPERLINK TO AN EXTERNAL SYSTEM
(SUCH AS A WEB PAGE IN A CARRIER WEBSITE).
2. BY REFERENCE TO AN
EXAMINATION PURPOSE.
EXTERNAL
SYSTEM
FOR
3. BY SENDING IT AS AN EMAIL ATTACHMENT.
FAILURE OF THE INDICATED SYSTEM TO PROVIDE ACCESS TO THE
REQUIRED ELECTRONIC RECORD AT THE TIME OF EXAMINATION SHALL
CONSTITUTE A DISCREPANCY THAT WOULD TRIGGER PAYMENT
DISHONOUR. HENCE IT IS IMPORTANT FOR A CARRIER TO ENSURE
THAT THE SERVER HOSTING THE ELECTRONIC RECORD (E.G.
ELECTRONIC SEA WAYBILL) SHOULD NEVER HAVE DOWN TIME OR IN
CASE OF FAILURE, A STANDBY SERVER CAN TAKE OVER IMMEDIATELY.
AUXILIARY POWER SUPPLY IS ALSO A MUST TO ENSURE THAT THERE IS
NO INTERRUPTION DURING POWER FAILURE.
PRESENTATION OF ONE ELECTRONIC RECORD IS ADEQUATE EVEN IF
THE L/C CALLS FOR MANY ORIGINALS AND COPIES.
THE DATE AN ELECTRONIC RECORD APPEARS TO HAVE BEEN SENT IS
DEEMED TO BE ITS DATE OF ISSUANCE, WHEN NO ISSUING DATE IS
SPECIFIED IN THE ELECTRONIC RECORD. IF NO OTHER DATE IS
APPARENT, THE DATE OF RECEIPT IS DEEMED TO BE THE DATE OF
SENDING.
IF NO DATE OF SHIPMENT OR DISPATCH IS SPECIFIED IN AN ELECTRONIC
RECORD, THEN THE DATE OF ISSUANCE IS DEEMED TO BE THE DATE OF
SHIPMENT OR DISPATCH, WHICH CAN BE OVERRIDDEN BY A NOTATION
BEARING DATE OF SHIPMENT OR DISPATCH.
A NOTATION SHOWING ADDITIONAL DATA CONTENT NEEDS NOT BE
AUTHENTICATED.
A CORRUPTED ELECTRONIC RECORD MUST BE RE-PRESENTED UPON
RECEIPT OF SUCH NOTICE BY THE BANK. IF RE-PRESENTATION IS NOT
MADE WITHIN 30 CALENDAR DAYS, THE ELECTRONIC RECORD IS
TREATED AS NOT PRESENTED. AS A RESULT, ANY DEADLINE IS NOT
EXTENDED.
THE BANK IS ONLY RESPONSIBLE FOR CHECKING THE APPARENT
AUTHENTICITY OF THE ELECTRONIC RECORD, AND IS NOT
RESPONSIBLE FOR THE IDENTITY OF THE SENDER, SOURCE OF
INFORMATION OR ITS COMPLETE AND UNALTERED CHARACTER.
Need for Electronic Court and
Arbitration Tribunal



The judges or arbitrators in the paper court or
arbitration tribunal mostly know only the paper
laws and how to deal with paper evidences and
paper procedures.
Hence there is a need for an electronic court or
arbitration tribunal to adjudicate on e-commerce
disputes as a very important supporting tool.
Why in L/C operations, the electronic rule
(eUCP) is there and yet no one would use it?
Need for an Electronic Court and
Arbitration Tribunal




The answer is simple.
In case of disputes in electronic trade, the court
or arbitration tribunal cannot effectively
adjudicate the disputes.
So making the rules and laws is not the final
solution. We have to provide the adjudicators
who understand how to interpret and apply the
rules and laws.
This is an opportunity for the young lawyers.
T. O. LEE FAE MCIArb MITD
IS AN EXPERT WITNESS, CONSULTANT AND TRAINER IN LETTER OF
CREDIT, BILL OF LADING, CHARTERING, MULTIMODAL TRANSPORT,
CARGO INSURANCE, INCOTERMS 2000, CHINA TRADE AND TRADE
FRAUDS. HE IS A FELLOW AND AN ACCREDITED EXPERT (LETTER OF
CREDIT) OF THE ACADEMY OF EXPERTS, GRAY'S INN, LONDON;
MEMBER OF INTERNATIONAL MULTIMODAL TRANSPORT ASSOCIATION;
AND A COLUMNIST OF LLOYD'S OF LONDON "MARITIME
ASIA/INTERMODAL ASIA" MAGAZINE AND THE HONG KONG ECONOMIC
JOURNAL. ARTICLES AND HIGHLIGHTS OF DISPUTE CASES RESOLVED
CAN BE VIEWED IN HIS WEBSITE WWW.TOLEE.COM.