UNCITRAL Working Group on Electronic Commerce
The Attorney-General's Department (AGD) represents Australia at the biannual meetings of the United Nations Commission on International Trade Law's (UNCITRAL) Working Group on Electronic Commerce. The Working Group developed the Model Law on Electronic Commerce, adopted by UNCITRAL in 1996, and the Model Law on Electronic Signatures, adopted by UNCITRAL in 2001. The Group has commenced the development of a draft Convention on Electronic Contracting.
Both the Model Laws adopt a technology neutral approach. Australia's online policy supports a technology neutral approach for electronic signatures that does not prefer one form of electronic signature technology over any other and that treats electronic transactions in the same way as paper-based transactions.
A technology neutral approach is preferable as it has become clear that technology specific legislative schemes can inhibit market choice. Furthermore, legislative regimes that prefer one technology over another create impediments to electronic commerce and restrict innovation.
Model Law on Electronic Commerce
The aim of the Model Law on Electronic Commerce is to provide national legislatures with a template of internationally acceptable rules to remove legal obstacles and create a more secure legal environment for electronic commerce. The Model Law is intended to facilitate the use of electronic communications by encouraging the international harmonisation of domestic legal. It provides standards to assist in assessing the legal value of electronic messages and legal rules for electronic commerce in specific areas such as carriage of goods.
The UNCITRAL Model Law has gained increasing international acceptance. It informs the discussion of electronic commerce laws in international fora and in the domestic consideration of such laws by many countries.
The Model Law has informed the electronic commerce debate in Australia and it was used by the Electronic Commerce Expert Group as the basis for its report to the Australian Government on the legal issues arising from the development of electronic commerce. The Expert Group's Report recommended that the Australian Government should enact electronic commerce framework legislation, the content of which should generally reflect the provisions of the Model Law on Electronic Commerce.
Legislation has been developed based on the recommendations of the Electronic Commerce Expert Group. The Electronic Transactions Act 1999 received Royal Assent on 10 December 1999 and commenced on 15 March 2000. The Electronic Transactions Regulations 2000, which specifies laws to which the Act does not apply, commenced on 1 July 2001. The states and territories have also enacted Electronic Transactions Acts.
Model Law on Electronic Signatures
The UNCITRAL Model Law on Electronic Signatures was adopted by UNCITRAL in 2001. The Model Law also adopts a technology neutral approach. The purpose of the Model Law is to encourage international harmonisation of laws concerning electronic signatures and certification authorities. The Model Law does three things:
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It builds upon the Model Law on Electronic Commerce signature provisions to provide greater legal certainty about the use of certain types of electronic signatures;
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It provides conduct rules for various parties dealing with electronic signatures; and
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It provides basic standards for the recognition of electronic signatures from other jurisdictions.
Minimum standards and rules encourage the development of cross border electronic commerce in jurisdictions where domestic legislation in relation to these issues is considered necessary.
Australian policy on electronic signatures is coordinated by the National Office of the Information Economy.
Convention on Electronic Commerce
The Working Group is currently developing a draft Convention on Electronic Contracting. The aim of the draft Convention is to eliminate legal obstacles to the use of modern means of communication in contract formation. The draft Convention is based on the United Nations Convention on Contracts for the International Sale of Goods and the Model Law on Electronic Commerce and is not intended to address substantive issues such as the material elements of offer and acceptance or the mutual rights and obligations of the parties. Rather, the draft Convention is intended to clarify or adapt the traditional rules on contract formation to accommodate the realities of electronic contracting.