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UNCITRAL MODEL LAWS ON E-COMMERCE

INTRODUCTION

The General Assembly of UNO, through its resolution, established the UNITED NATIONS COMMISSION
FOR INTERNATIONAL TRADE LAW (UNCITRAL) on 17th December 1996 in pursuance of the need of
reforming International Trade Laws. The UNCITRAL adopted the Model Law on E-Commerce in 1996, and it
provides for equal treatment for both paper-based and electronic communication. The three essential principles
of Model law on E-commerce are:

1. Functional Equivalence
2. Technology neutral
3. Non-discrimination.

Model law aims to offer national legislators a set of internationally acceptable rules to remove legal obstacles
and create a more secure environment for e-commerce. The Modal law on e-commerce was enacted keeping in
mind the increased usage of modern means of communication such as electronic mail and electronic data
interchange in international trade.

1.1 A BRIEF ANALYSIS OF THE ARTICLES OF MODEL LAW ON E-COMMERCE

The Model law consists of two parts, the first part deals with rules of general application, and the second
part consists of special rules that apply in specific areas of e-commerce. A total of 17 Articles constitutes the
Model law. The Model law does not provide the definition of the term e-commerce; instead, under Article 2, the
term Electronic Data Interchange is defined. Electronic data interchange is given a broad meaning under the
Model laws to include various aspects of e-commerce. In the first part, Articles 5 to 9 assure legal validity to the
electronic messages used during commercial activity. It also deals with the admissibility and evidential weight
of the messages. Articles 11 to 15 in the first part of the Model Law deals with the communication of data
messages, i.e., its recognition by the parties, time and place of its dispatch, and receipt and acknowledgment of
its receipt. As per Article 15, the data messages are deemed to be dispatched at the place of originators' business
and considered to be received at the addressee's place of business. These Articles help in the reduction of
inconsistencies concerning the communication of data messages.

The second part of the Model law contains Articles 16 and 17 that deal with electronic
communication in the carriage of goods and related transport documents. These Articles aim to set out the
ground rules relating to the acceptance of electronic communication for the transport of goods and also rules
concerning electronic bill of lading.

1.2 IMPORTANT ARTICLES UNDER THE MODEL LAW

 ARTICLE 5 deals with the validity, enforceability, and legal recognition of data messages. No
information shall be denied of its validity solely on the ground of it being a data message. The principle
of non-discrimination is one of the essentials of Model law on e-commerce. It is envisaged under Article
5, as it prohibits discrimination of information electronically received from others. In its 31 st session in
June 1998, the Commission also adopted Article 5 bis which gives legal validity to the information
received by reference, which has broadened the application of Article 5. The main aim was to provide
the same degree of legal validity to the electronic data message as that of the conventional paper-based
communication. Data messages constitute various legal consequences, such as information concerning
the formation of a contract; sometimes, it may also act as evidence of a contractual obligation. It may
also contain information relating to the payment of sales tax. The information contained in the data
message should not be deprived of its legal validity solely because the medium used for transmission
and storage is electronic and not paper-based. Consequently, after adopting Model laws, most national
laws now contain a provision concerning not denying validity to information received through electronic
medium.
 ARTICLE 6&7 of the Model laws aims at removing the obstacle concerning the requirement of the
nations to have documents and signatures to be handwritten. The need for records to be in writing was
an obstacle done away with the Model laws. Article 7 also gave validity to the digital signature. The
UNCITRAL, in its Modal law on Electronic Signatures (2001), has broadened the scope and
applicability of electronic signatures. The Model Law on electronic signatures has laid down specific
minimum standards to be satisfied by electronic signatures. Electronic signatures have helped in the
smooth running of businesses and other commercial activities, although there may be situations where
electronic signatures can be forged. In Re: Jade Truman Kaiser Maison, Mr. Maison forged the
 electronic signature of his customer with ease. When the electronic signature is stored on a hard drive,
others can easily access the signature. Such was the case in Adamo v. College of Physicians and
Surgeons of Ontario, where the electronic signature of a doctor was falsely charged affixed without his
authority. The national legislations have given privacy concerns concerning the usage of electronic
signatures, and necessary measures have been taken for its privacy. The digital signature plays a crucial
role in e-commerce as the importance of authentication is increasing day by day.
 Article 9 of the Model law states that data messages should not be denied evidentiary value solely
because it was in an electronic form. The evidentiary value of data messages should be assessed on the
ground of whether they are stored, generated, or communicated reliably. In India, the Information
Technology Act, 2000 and the Amendments made to the Indian Evidence Act, 1872 based on the Model
laws recognise the evidentiary value of electronic data messages. As per an explanation to Section 79A
of the Information Technology Act, an electronic form of evidence means any form of evidence that is
either stored or transmitted in electronic form. Courts can permit the use of electronic evidence. The
definition of evidence given under Section 3 of the Evidence Act includes electronic evidence as well.
Section 65A and 65 B of the Evidence Act deals with the admissibility of electronic evidence.
According to section 136 of the Evidence Act, the judge decides the admissibility of the evidence after
giving relevant consideration to the importance of the evidence to the case. The developments in the
field of technology have brought drastic changes to the law of evidence as well. However, much more
stringent legal frameworks have to be developed to cope with the changes.
 Article 11 aims at promoting international trade by providing validity to the formation of contracts in
electronic form. It deals with the formation of contracts as well as its offer and acceptance. In India,
section 10-A of the Information Technology Act,2000 gives legal recognition to E-contracts. E-contracts
are generally made for entering into a contract more conveniently and speedily. The use of e-contracts
comes into play when both parties reside in different countries. The parties only have to enter the digital
signature to give effect to the e-contract. E-contracts can be formed either through websites or by the
exchange of e-mails between the parties. There are three types of e-contracts, namely;

(a) Shrinkwrap Agreements: users can only read the terms and conditions after opening the site.

(b) Clickwrap Agreements: The user indicates acceptance by clicking the "I agree" button.

(c) Browse wrap Agreements: Mere browsing of the website may constitute a user giving consent.

CONCLUSION

E-commerce has revolutionized the methods of undertaking between almost all sectors of the economy,
especially in the education sector in the present covid situation. Due to its global nature, both traders and
individuals benefit from international trade through e-commerce. The main benefit of e-commerce is that the
consumers get a wide range of goods and services online. Online services such as banking, ticket booking, bill
payments, and hotel booking have tremendous benefits for consumers. Despite these advantages, there may still
be situations when e-commerce may become adverse. In India, the rights of online customers are protected by
various laws such as the Indian Contract Act,1872, IT Act,2000, Consumer Protection Act,1986, Specific Relief
Act,1963, Sale of Goods Act,1930, and the Competition Act,2000.

REFERENCES

1. UNCITRAL Model Law on Electronic Commerce with Guide to Enactment 1996 with additional Article 5 bis as adopted in
1986,(last visited on September, 23,2021)

2. United Nations Conference on Trade and Development, Information Economy Report 2006, (last visited on
September,23,2021)

3. Burman and Harold S, "UNITED NATIONS: UNCITRAL MODEL LAW ON ELECTRONIC COMMERCE," Volume
no:36, American Society of International Law, 1997

4. Mason and Stephen, "INTRODUCTION TO THE ELECTRONIC SIGNATURES," University of London Press, 2016

5. Guide to Enactment of the UNCITRAL Model Law on Electronic Commerce (1996), (last visited on September, 23,2021)

6. 2012 CanLII 42181(CA MFDAC)

7. 2007 CanLII 9873(ONS.C.P.C)

8. The Information Technology Act, 2000, No.10, Acts of Parliament,2000

9. The Indian Evidence Act, 1872, No.1, Acts of Parliament, 1872

10. Dr. Mohammed Zaheeruddin, Evidentiary value of Electronic Transactions, (last visited on September,24,2021)