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.