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Paperless Trade: Opportunities, Challenges and Solutions [Kõva köide]

  • Formaat: Hardback, 224 pages
  • Sari: Global Trade & Finance Series
  • Ilmumisaeg: 01-Jan-2003
  • Kirjastus: Kluwer Law International
  • ISBN-10: 9041198970
  • ISBN-13: 9789041198976
  • Formaat: Hardback, 224 pages
  • Sari: Global Trade & Finance Series
  • Ilmumisaeg: 01-Jan-2003
  • Kirjastus: Kluwer Law International
  • ISBN-10: 9041198970
  • ISBN-13: 9789041198976
A "digital divide" threatens the global trade regime. And it is not narrowing; it is rapidly becoming an unbridgeable chasm. Nor is this a problem merely for developing countries: the headlong trend toward dematerialisation of trade documents in the developed world will grind to a halt unless all trading countries without exception possess the legal and operational ability to participate in paperless trade.

This challenging work not only describes the obstacles to universal support for paperless trade, but also provides solutions that can be implemented if stakeholders make the collective effort to achieve this most desirable (and in fact necessary) goal. Dr. Laryea investigates such central issues as the following: legal problems and security risks not encountered in paper documentation; accommodating low-tech problems with electronic documentation; and funding the construction of information and communication technology infrastructure in developing countries. The presentation focuses on each of the essential contract documents in turn, from the quotation to the documentary credit, explaining exactly how the electronic versions of each work (particularly in terms of security), and why each is desirable.

As the first comprehensive set of practical proposals, from a truly global perspective, for the speedy dematerialisation of trade documents, Paperless Trade is essential reading for traders, practitioners, academics, and national and international officials and policymakers engaged in facilitating world trade.

Foreword xvii
Acknowledgements xix
Opportunities and Challenges
1(8)
The Opportunities
1(1)
The Challenges
2(6)
Legal Challenges
3(2)
Operational Challenges
5(3)
Organisation of Contents
8(1)
Legal Evidence Issues
9(28)
Introduction
9(1)
Admissibility of Electronic Evidence
10(18)
The Rule against Hearsay
11(1)
Electronic Data and the Hearsay Rule
12(4)
Legislative Exceptions to the Rule against Hearsay
16(1)
Computer-Specific Approach
17(1)
Business Records Approach
18(1)
Business Records Provisions other than those in the Evidence Act 1995 (Cth & NSW)
18(2)
Business Records Provisions Under the Evidence Act 1995 (Cth & NSW)
20(3)
Electronic Data and the Rule Requiring Original Documents
23(3)
Electronic Data and the Rule Excluding Opinion Evidence
26(1)
Present State of the Law Relating to Admissibility of Electronic Data
27(1)
Reliability of Electronic Evidence
28(6)
Non-Repudiation Services
32(1)
Cryptography
32(1)
Proof of Submission and Proof of Delivery
32(1)
Passwords and Biometrics
33(1)
Private International Law Issues
34(2)
Conclusion
36(1)
Contract of Sale
37(14)
Introduction
37(1)
Creation of the Contract of Sale
37(1)
The Role of Writing in the Creation of the Contract of Sale
38(1)
Functions of Writing
39(6)
Legal Requirement for Writing
39(3)
Effects of Written Elements of the Contract
42(1)
Electronic Replication of the Functions of the Contract Document
43(1)
Formal Validity Requirements
43(1)
Legal Evidence
43(1)
Record Retention Requirements
44(1)
Internal Business and Commercial Requirements
44(1)
Desirability of Replicating the Functions of the Contract Document Electronically
45(1)
Type of Written Document
The Quotation
45(1)
Electronic Replication of Quotations
46(1)
Desirability of Replicating the Functions of the Quotation Electronically
46(1)
The Purchase Order
46(1)
Electronic Replication of the Functions of the Purchase Order
46(1)
Desirability of Replicating the Functions of the Purchase Order Electronically
47(1)
The Sale or Commercial Invoice
47(1)
Electronic Replication of the Functions of the Commercial Invoice
48(1)
Desirability of Replicating the Functions of the Commercial Invoice Electronically
48(1)
The Confirmation Slip
48(1)
Electronic Replication of the Functions of the Confirmation Slip
49(1)
Desirability of Replicating the Functions of the Confirmation Slip Electronically
49(1)
The Countersigned Acceptance Form
49(1)
Electronic Replication of the Functions of the Countersigned Acceptance Form
50(1)
Desirability of Replicating the Functions of the Countersigned Acceptance Form Electronically
50(1)
Conclusion
50(1)
Carriage of Goods and Transport Documents
51(42)
Introduction
51(1)
Creation of the Contract of Carriage
52(2)
Documents Generated Under the Carriage Contract
54(1)
Functions of Documents Generated under Sea-Carriage Contract
54(3)
The Law of Carriage of Goods by Sea
54(3)
The Nature of the Documents
57(1)
The Various Documents
57(35)
Charterparty
57(1)
Electronic Replication of the Functions of the Charterparty
58(1)
Desirability of Replicating the Functions of the Charterparty Electronically
58(1)
Booking Note
59(1)
Electronic Replication of the Functions of the Booking Note
60(1)
Desirability of Replicating the Functions of the Booking Note Electronically
60(1)
Booking Confirmation Note
60(1)
Electronic Replication of the Functions of the Booking Confirmation Note
60(1)
Desirability of Replicating the Functions of the Booking Confirmation Note Electronically
60(1)
Sea Waybill
60(1)
Electronic Replication of the Functions of the Sea Waybill
61(2)
Desirability of Replicating the Functions of the Sea Waybill Electronically
63(1)
Bill of Lading
63(1)
Bill of Lading as Acknowledgement of Receipt
64(2)
Bill of Lading as Evidence of the Contract of Carriage
66(1)
Bill of Lading as a Document of Title to Goods
67(5)
Electronic Replication of the Negotiability Function of the Bill of Lading
72(6)
Practical Problems to EBLs
78(1)
Analysis of the SeaDocs System
78(2)
Analysis of the CMI Rules
80(3)
Current Systems
83(1)
Bolero
83(3)
@GlobalTrade
86(1)
Bolero Compared with Previous EBLs Systems
87(1)
Bolero v. SeaDocs
87(1)
Bolero v. the CMI Rules
88(1)
Future of EBLs
89(1)
Delivery Order
90(1)
Electronic Replication of the Functions of the Delivery Order
91(1)
Desirability of Replicating the Functions of the Delivery Order Electronically
92(1)
Conclusion
92(1)
Insurance Documents
93(20)
Introduction
93(1)
Formation of the Transit Insurance Contract
94(1)
The Slip
95(5)
Functions of the Slip
96(2)
Electronic Replication of the Functions of the Slip
98(1)
Desirability of Replicating the Functions of the Slip Electronically
98(2)
The Policy
100(6)
Functions of the Policy
100(2)
Electronic Replication of the Functions of the Insurance Policy
102(1)
Validity of Electronic Insurance Policy
102(1)
Assignment of a Policy
103(2)
Desirability of Replicating the Functions of the Marine Insurance Policy Electronically
105(1)
The Certificate of Insurance
106(3)
Functions of the Certificate of Insurance
107(1)
Electronic Replication of the Functions of the Certificate of Insurance
108(1)
Desirability of Replicating the Functions of the Certificate of Insurance Electronically
109(1)
The Broker's Cover Note
109(1)
Functions of the Broker's Cover Note
109(1)
Electronic Replication of the Functions of the Broker's Cover Note
110(1)
Desirability of Replicating the Functions of the Broker's Cover Note Electronically
110(1)
The Letter of Insurance
110(1)
Functions of the Letter of Insurance
110(1)
Electronic Replication of the Functions of the Letter of Insurance
111(1)
Desirability of Replicating the Functions of the Letter of Insurance Electronically
111(1)
Legal Reform in Australia
111(1)
Conclusion
112(1)
Payment in Paperless Trade
113(36)
Introduction
113(1)
Reasons for the Documentary Credit's Popularity
113(14)
Cash in Advance or Prepayment
114(1)
Payment on Account or Open Account
114(1)
Documentary Collection
115(2)
Documentary Letter of Credit
117(3)
Advantages of Documentary Credits
120(1)
Security
120(1)
Liquidity
120(1)
Proximity for Claims
121(1)
Disadvantages of Documentary Credits
121(1)
Delay
121(1)
Cost
122(1)
Fraud
123(1)
International Factoring
123(2)
Countertrade
125(1)
Barter
125(1)
Reciprocal Sales Agreements (or Counterpurchase)
125(1)
Buy-back Agreement
126(1)
Importance of Countertrade
126(1)
Disadvantages of Countertrade
126(1)
Relevancy of Documentary Credits in Paperless Trade
127(4)
Security for Payment and Paperless Documentation
127(2)
Liquidity and Paperless Documentation
129(1)
Proximity and the Paperless Era
130(1)
Are There Alternative Methods of Providing Security, Liquidity, and Proximity?
131(10)
The Escrow Account
132(2)
Bank Undertaking
134(1)
Bank Guarantees
135(1)
Performance Bonds
136(1)
Standby Letters of Credit
136(1)
Guarantees, Performance Bonds, and Standbys as Alternatives for the Documentary Credit
136(3)
Documentary Credit Compared with Bank Undertaking Instruments
139(1)
Emerging Electronic Payment Systems
139(1)
Digital Cash
140(1)
Electronic (Digital) Cheques
140(1)
Smart Cards
140(1)
International Electronic Credit Transfers
140(1)
Electronic Documentary Credits
141(6)
Contract between the Buyer and Issuing Bank
142(1)
Arrangement between the Issuing Bank and Correspondent Bank
143(1)
Arrangement between the Correspondent Bank and Beneficiary
144(1)
Arrangement between the Issuing Bank and Beneficiary
144(1)
The Documentary Credit Mechanism and Electronic Systems
145(2)
Conclusion
147(2)
The Information and Communication Technologies Gap
149(14)
Introduction
149(1)
Nature and Causes of the ICT Gap
149(12)
Government Departments and Paperless Documentation
152(1)
Automated Systems for Customs Data
153(1)
The ASYCUDA Programme and Implementation
153(2)
Advanced Cargo Information System
155(2)
Basic ICT Infrastructure
157(2)
Commercial Parties and Paperless Documentation
159(1)
Financial Institutions and Paperless Documentation
160(1)
Present Low-Tech Scenario in Developing Countries
160(1)
Implications of the ICT Gap
161(1)
Conclusion
162(1)
Potential Solutions
163(26)
Introduction
163(1)
A Dual System
163(6)
Necessary Features of a Dual System
164(1)
PBLs and EBLs must be Obtainable on Shipment
164(1)
EBLs must be Convertible to PBLs
164(1)
Convertibility from EBL to PBL under the CMI Rules
165(1)
Convertibility from EBL to PBL under Bolero
165(1)
PBLs must be Convertible to EBLs
166(2)
Practical Issues
168(1)
Delays under the Dual System
168(1)
Cost of Maintaining a Dual System
168(1)
Possible lack of Support by Hi-tech Entities
168(1)
Third Party Facilitators
169(10)
Function of a TPF in a Semi-LT Environment
169(1)
Services to Importers in a Semi-LT Environment
170(1)
Services to Exporters in a Semi-LT Environment
170(1)
Services to Government Departments in a Semi-LT Environment
170(1)
Functions of a TPF in a Demi-LT Environment
170(1)
Services to Exporters in a Demi-LT Environment
171(1)
Services to Importers in a Demi-LT Environment
171(1)
Services to Banks in a Demi-LT Environment
171(1)
Relationship of Parties with TPFs in a Demi-LT Environment
171(1)
Functions of a TPF in an Absolute-LT Environment
171(1)
Services to Importers in an Absolute-LT Environment
172(1)
Services to Exporters in an Absolute-LT Environment
172(1)
Services to Government Departments in an Absolute-LT Environment
172(1)
Legal Forms and Organisation of TPFs
172(1)
Sole Proprietors as TPFs
173(1)
Co-operatives as TPFs
173(1)
Companies or Corporations as TPFs
174(1)
Commercial Companies as TPFs
174(1)
Not-For-Profit Corporations as TPFs
175(1)
Banks as TPFs
175(2)
Regulatory Regimes of TPFs
177(2)
Facilitating the Construction of the ICT Infrastructure
179(8)
What is Needed
180(1)
Sources and Forms of Funding
181(1)
The World Bank as a Source of Funding Low-Tech Infrastructure Development
182(4)
Other Multilateral Sources
186(1)
Bilateral Sources
187(1)
Conclusion
187(2)
Further Reading 189(8)
Index 197