Model Law Esignatures

UNCITRAL UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW
UNCITRAL Model Law on

Electronic Transferable Records
UNITED NATIONS
Further information may be obtained from:
UNCITRAL secretariat, Vienna International Centre
P.O. Box 500, 1400 Vienna, Austria
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UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW

UNITED NATIONS
New York, 2018
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Contents
Resolution adopted by the General Assembly on 7 December 2017 . . . . . . . . . . . 3
Decision of the United Nations Commission on International Trade Law

(UNCITRAL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
UNCITRAL Model Law on Electronic Transferable Records . . . . . . . . . . . . . . . . 7
Chapter I. General provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Article 1. Scope of application . . . . . . . . . . . . . . . . . . . . . . . . 7
Article 2. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Article 3. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Article 4. Party autonomy and privity of contract . . . . . . 8
Article 5. Information requirements . . . . . . . . . . . . . . . . . . 8
Article 6. Additional information in electronic
transferable records . . . . . . . . . . . . . . . . . . . . . . . . 8
Article 7. Legal recognition of an electronic transferable
record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Chapter II. Provisions on functional equivalence . . . . . . . . . . . . . . . . . . . . . . . . . 9

Article 8. Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Article 9. Signature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Article 10. Transferable documents or instruments . . . . . . 9
Article 11. Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Chapter III. Use of electronic transferable records . . . . . . . . . . . . . . . . . . . . . . . . 10

Article 12. General reliability standard . . . . . . . . . . . . . . . . . 10
Article 13. Indication of time and place
in electronic transferable records . . . . . . . . . . . . 11
Article 14. Place of business . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
iii
Article 15. Endorsement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Article 16. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Article 17. Replacement of a transferable docu-
ment or instrument with an electronic
transferable record . . . . . . . . . . . . . . . . . . . . . . . . . 12
Article 18. Replacement of an electronic transferable
record with a transferable document
or instrument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Chapter IV. Cross-border recognition of electronic transferable records . . . . 13

Article 19. Non-discrimination of foreign electronic
Explanatory Note to the UNCITRAL Model Law on Electronic

Transferable Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
A. Purpose of this explanatory note . . . . . . . . . . . . . . . . . . . . . . . . . 15
B. Objectives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
C. Scope .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
D. Structure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
E. Background and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . 18
II. Article-by-article commentary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Chapter I. General provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Article 1. Scope of application . . . . . . . . . . . . . . . . . . . . . . . . 23
Article 2. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Article 3. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Article 4. Party autonomy and privity of contract . . . . . . 29
Article 5. Information requirements . . . . . . . . . . . . . . . . . . 31
Article 7. Legal recognition of an electronic
transferable record . . . . . . . . . . . . . . . . . . . . . . . . . 32
iv
Chapter II. Provisions on functional equivalence . . . . . . . . . . . . . . . . . . . . . . . . . 35
Techniques of enactment of articles 8 and 9 . . . . . . . . . . . . . . . . . . . 35
Article 8. Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Article 9. Signature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Article 10. Transferable documents or instruments . . . . . . 37
Article 11. Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Chapter III. Use of electronic transferable records . . . . . . . . . . . . . . . . . . . . . . . . 46

Article 12. General reliability standard . . . . . . . . . . . . . . . . . 46
Article 13. Indication of time and place in
electronic transferable records . . . . . . . . . . . . . . 50
Article 14. Place of business . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Article 15. Endorsement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Article 16. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Article 17. Replacement of a transferable document or
instrument with an electronic transferable
record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Article 18. Replacement of an electronic transfera-
ble r ecord with a transferable document or
instrument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Chapter IV. Cross-border recognition of electronic transferable records . . . . 58

Article 19. Non-discrimination of foreign
electronic transferable records . . . . . . . . . . . . . . 58
III. Other relevant issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

A. Notion of “original” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
B. Issuance of multiple originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
C. Storage and archiving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
D. Third-party service providers . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
v
Resolution adopted by
the General Assembly on
7 December 2017
[on the report of the Sixth Committee (A/72/458)]
72/114. Model Law on Electronic Transferable

Records of the United Nations Commission on
International Trade Law
The General Assembly,
Recalling its resolution 2205 (XXI) of 17 December 1966, by which it estab-
lished the United Nations Commission on International Trade Law with a mandate
to further the progressive harmonization and unification of the law of international
trade and in that respect to bear in mind the interests of all peoples, in particular
those of developing countries, in the extensive development of international trade,
Recalling also its resolution 60/21 of 23 November 2005, by which it adopted
the United Nations Convention on the Use of Electronic Communications in Inter-
national Contracts and called upon all Governments to consider becoming party
to the Convention, and its resolutions 51/162 of 16 December 1996 and 56/80
of 12 December 2001, in which it recommended that all States give favourable
consideration to the Model Law on Electronic Commerce and the Model Law on
Electronic Signatures of the Commission, respectively,
Noting that, while the Convention, the Model Law on Electronic Commerce
and the Model Law on Electronic Signatures are of significant assistance to States
in enabling and facilitating electronic commerce in international trade, they do not
fully address issues arising from the use of electronic transferable records in inter-
national trade,
Considering that uncertainties as to the legal value of electronic transferable
records constitute an obstacle to international trade,
Convinced that legal certainty and commercial predictability in electronic com-
merce will be enhanced by the harmonization of certain rules on the legal recog-
nition of electronic transferable records on a technologically neutral basis and
according to the functional equivalence approach,
3
4 UNCITRAL Model Law on Electronic Transferable Records
Recalling that, at its forty-fourth session, in 2011, the Commission mandated

its Working Group IV (Electronic Commerce) to undertake work on electronic
transferable records,1
Noting that the Working Group devoted 10 sessions, from 2011 to 2016, to
that work, and that the Commission considered at its fiftieth session, in 2017, a
draft model law on electronic transferable records prepared by the Working Group,
together with comments on the draft received from Governments and international
organizations invited to sessions of the Working Group,2
Believing that a model law on electronic transferable records will constitute a
useful addition to existing Commission texts in the area of electronic commerce
by significantly assisting States in enhancing their legislation on electronic com-
merce, in particular as it relates to the use of electronic transferable records, or in
formulating such legislation where none exists,
1. Expresses its appreciation to the United Nations Commission on Interna-
tional Trade Law for completing and adopting the Model Law on Electronic Trans-
ferable Records;3
2. Requests the Secretary-General to publish the Model Law together with an
explanatory note, including electronically, in the six official languages of the United
Nations, and to disseminate it broadly to Governments and other interested bodies;
3. Recommends that all States give favourable consideration to the Model Law
when revising or adopting legislation relevant to electronic commerce, and invites
States that have used the Model Law to advise the Commission accordingly;
4. Also recommends that States continue to consider becoming parties to the
United Nations Convention on the Use of Electronic Communications in Interna-
tional Contracts4 and to give favourable consideration to the use of the Model Law
on Electronic Commerce5 and the Model Law on Electronic Signatures6 when
revising or adopting legislation on electronic commerce;
5. Appeals to the relevant bodies of the United Nations system and other
relevant international and regional organizations to coordinate their legal activities
in the area of electronic commerce, including paperless trade facilitation, with those
of the Commission, to avoid duplication of efforts and to promote efficiency, con-
sistency and coherence in the modernization and harmonization of legislation on
electronic commerce.
67th plenary meeting , 7 December 2017
Official Records of the General Assembly, Sixty-sixth Session, Supplement No. 17 (A/66/17),
1
para. 238.
2
Ibid., Seventy-second Session, Supplement No. 17 (A/72/17), chap. III.
3
Ibid., annex I.
4
Resolution 60/21, annex.
5
6
Decision of the United Nations
Commission on International Trade Law
(UNCITRAL)
The United Nations Commission on

International Trade Law,
Recalling General Assembly resolution 2205 (XXI) of 17 December 1966,
which established the United Nations Commission on International Trade Law
with the purpose of furthering the progressive harmonization and unification of
the law of international trade in the interests of all peoples, in particular those of
developing countries,
Mindful that, while the United Nations Convention on the Use of Electronic
Communications in International Contracts (New York, 2005),1 the UNCITRAL
Model Law on Electronic Signatures (2001)2 and the UNCITRAL Model Law on
Electronic Commerce (1996)3 are of significant assistance to States in enabling and
facilitating electronic commerce in international trade, they do not deal or do not
sufficiently deal with issues arising from the use of electronic transferable records
in international trade,
Considering that uncertainties as to the legal value of electronic transferable
records constitute an obstacle to international trade,
Convinced that legal certainty and commercial predictability in electronic
commerce will be enhanced by the harmonization of certain rules on the legal
recognition of electronic transferable records on a technologically neutral basis and
according to the functional equivalence approach,
Recalling that, at its forty-fourth session, in 2011, it mandated Working
Group IV (Electronic Commerce) to undertake work on electronic transferable
records,4
1
General Assembly resolution 60/21, annex.
2
3
Official Records of the General Assembly, Sixty-sixth Session, Supplement No. 17 (A/66/17), para. 238.
4
5
Having considered at its fiftieth session, in 2017, a draft model law on

electronic transferable records prepared by the Working Group,5 together with
comments on the draft received from Governments and international organizations
invited to sessions of the Working Group,6
Noting that the draft model law prepared by the Working Group deals with
the use of electronic transferable records equivalent to paper-based transferable
documents or instruments and does not deal with the use of transferable records
existing only in electronic form or transferable records, documents or instruments
for which substantive law is medium-neutral,
Believing that an UNCITRAL model law on electronic transferable records will
constitute a useful addition to existing UNCITRAL texts in the area of electronic
commerce by significantly assisting States in enhancing their legislation governing
the use of electronic transferable records, or in formulating such legislation where
none currently exists,
1. Adopts the UNCITRAL Model Law on Electronic Transferable Records,
annexed to the report of the fiftieth session of the Commission;
2. Requests the Secretariat to finalize an explanatory note that will accom-
pany the UNCITRAL Model Law on Electronic Transferable Records by reflecting
deliberations and decisions at the Commission’s fiftieth session as regards the draft
explanatory notes contained in documents A/CN.9/920 and A/CN.9/922;
3. Requests the Secretary-General to publish the UNCITRAL Model Law

on Electronic Transferable Records together with an explanatory note, including
electronically and in the six official languages of the United Nations, and to
disseminate it broadly to Governments and other interested bodies;
4. Recommends that all States give favourable consideration to the

UNCITRAL Model Law on Electronic Transferable Records when revising or
adopting legislation relevant to electronic transferable records, and invites States
that have used the Model Law to advise the Commission accordingly.
1057th meeting
13 July 2017
A/CN.9/920.
5
A/CN.9/921 and addenda.

6
Chapter I. General provisions

Article 1. Scope of application
1. This Law applies to electronic transferable records.
2. Other than as provided for in this Law, nothing in this Law affects the
application to an electronic transferable record of any rule of law governing a trans-
ferable document or instrument including any rule of law applicable to consumer
protection.
3. This Law does not apply to securities, such as shares and bonds, and other
investment instruments, and to […].1
Article 2. Definitions
For the purposes of this Law:

“Electronic record” means information generated, communicated, received or stored
by electronic means, including, where appropriate, all information logically
associated with or otherwise linked together so as to become part of the record,
whether generated contemporaneously or not;
“Electronic transferable record” is an electronic record that complies with the require-
ments of article 10;
The enacting jurisdiction may consider including a reference to: (a) documents and instru-
1
ments that may be considered transferable, but that should not fall under the scope of the Model
Law; (b) documents and instruments falling under the scope of the Convention Providing a Uniform
Law for Bills of Exchange and Promissory Notes (Geneva, 1930) and the Convention Providing a
Uniform Law for Cheques (Geneva, 1931); and (c) electronic transferable records existing only in
electronic form.
7
“Transferable document or instrument” means a document or instrument issued on

paper that entitles the holder to claim the performance of the obligation indicated
in the document or instrument and to transfer the right to performance of the
obligation indicated in the document or instrument through the transfer of that
document or instrument.
Article 3. Interpretation
1. This Law is derived from a model law of international origin. In the interpre-
tation of this Law, regard is to be had to the international origin and to the need
to promote uniformity in its application.
2. Questions concerning matters governed by this Law which are not expressly
settled in it are to be settled in conformity with the general principles on which
this Law is based.
Article 4. Party autonomy and privity of contract
1. The parties may derogate from or vary by agreement the following provisions
of this Law: […].2
2. Such an agreement does not affect the rights of any person that is not a party
to that agreement.
Article 5. Information requirements
Nothing in this Law affects the application of any rule of law that may require a
person to disclose its identity, place of business or other information, or relieves a
person from the legal consequences of making inaccurate, incomplete or false state-
ments in that regard.
Article 6. Additional information in

electronic transferable records
Nothing in this Law precludes the inclusion of information in an electronic trans-

ferable record in addition to that contained in a transferable document
or instrument.
The enacting jurisdiction may consider which provisions of the Model Law, if any, the parties
2
may derogate from or vary by agreement.

UNCITRAL Model Law on Electronic Transferable Records 9
Article 7. Legal recognition of an electronic transferable

record
1. An electronic transferable record shall not be denied legal effect, validity or

enforceability on the sole ground that it is in electronic form.
2. Nothing in this Law requires a person to use an electronic transferable record

without that person’s consent.
3. The consent of a person to use an electronic transferable record may be

inferred from the person’s conduct.
Chapter II. Provisions on

functional equivalence
Article 8. Writing
Where the law requires that information should be in writing, that requirement is
met with respect to an electronic transferable record if the information
contained therein is accessible so as to be usable for subsequent reference.
Article 9. Signature
Where the law requires or permits a signature of a person, that requirement is met
by an electronic transferable record if a reliable method is used to identify that
person and to indicate that person’s intention in respect of the information con-
tained in the electronic transferable record.
Article 10. Transferable documents or instruments
1. Where the law requires a transferable document or instrument, that require-

ment is met by an electronic record if:
(a) The electronic record contains the information that would be required
to be contained in a transferable document or instrument; and
(b) A reliable method is used:
(i) To identify that electronic record as the electronic transferable

record;
(ii) To render that electronic record capable of being subject to
control from its creation until it ceases to have any effect or valid-
ity; and
(iii) To retain the integrity of that electronic record.
2. The criterion for assessing integrity shall be whether information contained in

the electronic transferable record, including any authorized change that arises from
its creation until it ceases to have any effect or validity, has remained complete and
unaltered apart from any change which arises in the normal course of communi-
cation, storage and display.
Article 11. Control
1. Where the law requires or permits the possession of a transferable document

or instrument, that requirement is met with respect to an electronic transferable
record if a reliable method is used:
(a) To establish exclusive control of that electronic transferable record by a
person; and
(b) To identify that person as the person in control.
2. Where the law requires or permits transfer of possession of a transferable doc-

ument or instrument, that requirement is met with respect to an electronic trans-
ferable record through the transfer of control over the electronic transferable record.
Chapter III. Use of electronic

transferable records
Article 12. General reliability standard
For the purposes of articles 9, 10, 11, 13, 16, 17 and 18, the method referred to
shall be:
(a) As reliable as appropriate for the fulfilment of the function for which the
method is being used, in the light of all relevant circumstances, which
may include:
(i) Any operational rules relevant to the assessment of reliability;

(ii) The assurance of data integrity;
(iii) The ability to prevent unauthorized access to and use of the
system;
(iv) The security of hardware and software;
(v) The regularity and extent of audit by an independent body;
(vi) The existence of a declaration by a supervisory body, an accred-
itation body or a voluntary scheme regarding the reliability of the
method;
(vii) Any applicable industry standard; or
(b) Proven in fact to have fulfilled the function by itself or together with
further evidence.
Article 13. Indication of time and place

in electronic transferable records
Where the law requires or permits the indication of time or place with respect to
a transferable document or instrument, that requirement is met if a reliable method
is used to indicate that time or place with respect to an electronic transferable
record.
Article 14. Place of business
1. A location is not a place of business merely because that is:

(a) Where equipment and technology supporting an information system
used by a party in connection with electronic transferable records are located; or
(b) Where the information system may be accessed by other parties.
2. The sole fact that a party makes use of an electronic address or other element
of an information system connected to a specific country does not create a pre-
sumption that its place of business is located in that country.
Article 15. Endorsement
Where the law requires or permits the endorsement in any form of a transferable
document or instrument, that requirement is met with respect to an electronic
transferable record if the information required for the endorsement is included in
the electronic transferable record and that information is compliant with the
requirements set forth in articles 8 and 9.
Article 16. Amendment
Where the law requires or permits the amendment of a transferable document or

instrument, that requirement is met with respect to an electronic transferable
record if a reliable method is used for amendment of information in the electronic
transferable record so that the amended information is identified as such.

instrument with an electronic transferable record
1. An electronic transferable record may replace a transferable document or

instrument if a reliable method for the change of medium is used.
2. For the change of medium to take effect, a statement indicating a change of

medium shall be inserted in the electronic transferable record.
3. Upon issuance of the electronic transferable record in accordance with para-

graphs 1 and 2, the transferable document or instrument shall be made inoperative
and ceases to have any effect or validity.
4. A change of medium in accordance with paragraphs 1 and 2 shall not affect

the rights and obligations of the parties.
Article 18. Replacement of an electronic transferable record

with a transferable document or instrument
1. A transferable document or instrument may replace an electronic transferable

record if a reliable method for the change of medium is used.
2. For the change of medium to take effect, a statement indicating a change of

medium shall be inserted in the transferable document or instrument.
3. Upon issuance of the transferable document or instrument in accordance with

paragraphs 1 and 2, the electronic transferable record shall be made
inoperative and ceases to have any effect or validity.
4. A change of medium in accordance with paragraphs 1 and 2 shall not affect

the rights and obligations of the parties.
Chapter IV. Cross-border recognition of


1. An electronic transferable record shall not be denied legal effect, validity or

enforceability on the sole ground that it was issued or used abroad.
2. Nothing in this Law affects the application to electronic transferable records

of rules of private international law governing a transferable document or
instrument.
Explanatory Note to the
UNCITRAL Model Law on Electronic
Transferable Records
I. Introduction
A. Purpose of this explanatory note
1. In preparing and adopting the UNCITRAL Model Law on Electronic Trans-

ferable Records (hereinafter referred to as “the Model Law”), the United Nations
Commission on International Trade Law (UNCITRAL) was mindful that the
Model Law would be a more effective tool for States modernizing their legislation
if background and explanatory information were provided. This Explanatory Note,
drawn from the travaux préparatoires of the Model Law, is intended to be helpful
to legislators, to providers and users of services related to electronic transferable
records, as well as to academics.
2. In the preparation of the Model Law, it was assumed that it would be accompa-
nied by explanatory materials. For example, it was decided in respect of certain issues
not to settle them in the Model Law but to address them in the explanatory materials
so as to provide guidance to States enacting the Model Law. Such information might
also assist States in considering which, if any, of the provisions of the Model Law
might have to be varied to take into account particular national circumstances.
B. Objectives
3. The increased use of electronic means improves the efficiency of commercial

activities, including by allowing reuse and analysis of data, enhances trade connec-
tions and allows new access opportunities for previously remote parties and
markets, thus playing a fundamental role in promoting trade and economic devel-
opment both domestically and internationally. However, certainty is needed as to
the legal value of the use of those electronic means. In order to address that need,
UNCITRAL has prepared a number of texts aimed at removing obstacles to the
use of electronic means in commercial activities such as the UNCITRAL Model
15
Law on Electronic Commerce,1 the UNCITRAL Model Law on Electronic Signa-

tures2 and the United Nations Convention on the Use of Electronic Communica-
tions in International Contracts (the “Electronic Communications Convention”).3
Those texts have been adopted in a large number of jurisdictions so that a uniform
law of electronic commerce has effectively been established.
4. Transferable documents and instruments are essential commercial tools. Their

availability in electronic form may be greatly beneficial for facilitating electronic
commerce in international trade as this could allow for their faster and more secure
transmission, among other benefits. Electronic equivalents of transferable docu-
ments and instruments may be particularly relevant for certain business areas such
as transport and logistics, and finance. The introduction of electronic transferable
records may also offer an opportunity to review existing commercial practices and
introduce new ones. Moreover, a fully paperless trade environment may not be
established without their use. At the same time, the dematerialization of transfer-
able documents and instruments may pose peculiar challenges given the established
practice of employing various paper-based precautions in order to reduce risks
associated with the unauthorized duplication of those documents and
instruments.
5. UNCITRAL dealt with the subject of transferable documents and instruments

in electronic forms before the adoption of the Model Law. Article 14, paragraph 3,
of the United Nations Convention on the Carriage of Goods by Sea (the “Hamburg
Rules”)4 may be interpreted as implying the possible use of electronic bills of lading.
Articles 16 and 17 of the UNCITRAL Model Law on Electronic Commerce provide
rules on actions related to contracts of carriage of goods and to transport documents
that enable the dematerialization, among others, of documents incorporating a claim
to delivery of goods.5 The United Nations Convention on Contracts for the
International Carriage of Goods Wholly or Partly by Sea (the “Rotterdam Rules”)6
devotes a chapter to electronic transport records. In particular, article 8 of the
Rotterdam Rules provides for the use and effect of electronic transport records,
article 9 indicates the procedures for the use of negotiable electronic transport
records and article 10 sets out rules for the replacement of negotiable transport
documents with negotiable electronic transport records and vice versa. Moreover,
the Rotterdam Rules define both the notion of electronic transport record(article 1,
1
UNCITRAL Model Law on Electronic Commerce with Guide to Enactment (New York,
1999), United Nations Publication, Sales No. E.99.V.4.
2
UNCITRAL Model Law on Electronic Signatures with Guide to Enactment (New York, 2002),
United Nations Publication, Sales No. E.02.V.8.
3
4
United Nations, Treaty Series, vol. 1695, No. 29215, p. 3
5
Those provisions have been enacted in national laws. However, details on their application in
business practice are not available.
6
paragraph 18)7 and that of negotiable electronic transport record (article 1,

paragraph 19).8
6. Unlike those instruments, the Electronic Communications Convention

excludes from its scope of application “bills of exchange, promissory notes, con-
signment notes, bills of lading, warehouse receipts or any transferable document
or instrument that entitles the bearer or beneficiary to claim the delivery of goods
or the payment of a sum of money” (article 2, paragraph 2). That exclusion was
based on the view that finding a solution to the challenges posed by the potential
consequences of unauthorized duplication of those documents and instruments
required a combination of legal, technological and business solutions, which had
not yet been fully developed and tested.9
7. In 2011, when the Commission decided to undertake work in the field of

electronic transferable records, support was expressed for that work in light of
benefits that the formulation of uniform legal standards in that field could bring
to the promotion of electronic communications in international trade generally as
well as to the implementation of the Rotterdam Rules and to other areas of
transport business specifically.10 UNCITRAL decided to prepare a model law to
enable the use of electronic transferable records on the basis of their functional
equivalence with transferable documents or instruments, building upon the
fundamental principles underlying existing UNCITRAL texts in the area of
electronic commerce, namely non-discrimination against the use of electronic
communications, functional equivalence and technological neutrality.
8. Facilitating the cross-border use of electronic transferable records is of

significant practical importance. In that respect, it should be noted that national
legislation predating the adoption of the Model Law and dealing with specific types
of electronic transferable records did not address cross-border aspects. Moreover,
to the extent that that legislation adopted specific models and technologies, the use
7
Rotterdam Rules, article 1, paragraph 18: “Electronic transport record” means information in
one or more messages issued by electronic communication under a contract of carriage by a carrier,
including information logically associated with the electronic transport record by attachments or
otherwise linked to the electronic transport record contemporaneously with or subsequent to its
issue by the carrier, so as to become part of the electronic transport record, that: (a) Evidences the
carrier’s or a performing party’s receipt of goods under a contract of carriage; and (b) Evidences or
contains a contract of carriage.
8
Ibid., article 1, paragraph 19: “Negotiable electronic transport record” means an electronic
transport record: (a) That indicates, by wording such as “to order”, or “negotiable”, or other appro-
priate wording recognized as having the same effect by the law applicable to the record, that the
goods have been consigned to the order of the shipper or to the order of the consignee, and is not
explicitly stated as being “non-negotiable” or “not negotiable”; and (b) The use of which meets the
requirements of article 9, paragraph 1.
9
Official Records of the General Assembly, Sixtieth Session, Supplement No. 17 (A/60/17), para. 27.
10
Ibid., Sixty-sixth Session, Supplement No. 17 (A/66/17), para. 235.
of those models and technologies could create additional obstacles to the cross-
border use of electronic transferable records. The Model Law aims at facilitating the
cross-border use of transferable documents and instruments by providing not only
a uniform and neutral text for adoption by all jurisdictions, but also a dedicated
provision addressing cross-border aspects of electronic transferable records.
9. UNCITRAL intends to continue monitoring the technical, legal and commer-

cial developments that underline the Model Law. It may decide, if advisable, to add
new provisions to the Model Law or modify the existing ones.
C. Scope
10. The Model Law applies to electronic transferable records that are the functional
equivalent of transferable documents or instruments. Transferable documents or
instruments are paper-based documents or instruments that entitle the holder to
claim the performance of the obligation indicated therein and that allow the transfer
of the claim to that performance by transferring the document or instrument. The
law of each jurisdiction will determine which documents or instruments are
transferable. The Model Law does not apply to electronic transferable records exist-
ing only in electronic form, as those records do not need a functional equivalent
to operate in the electronic environment. The Model Law does not affect the
medium-neutral substantive law applicable to electronic transferable records.
11. The Model Law does not aim to affect in any manner existing law applicable
to transferable documents or instruments, which is referred to as “substantive law”
and includes rules on private international law.
D. Structure
12. The Model Law consists of four chapters. The first chapter contains general
provisions relating to the scope of application of the Model Law and to certain
general principles. The second chapter contains provisions on functional equiva-
lence. The third chapter contains provisions on the use of electronic transferable
records. The fourth chapter deals with the cross-border recognition of electronic
transferable records.
E. Background and drafting history
13. The possibility of future work by UNCITRAL with regard to issues of nego-
tiability and transferability of rights in goods in an electronic environment was first
mentioned at the Commission’s twenty-seventh session, in 1994,11 and subse-

quently discussed in various sessions of the Commission and its working groups,
in particular in the context of electronic commerce and transport law.12 In that
framework, two documents have dealt in depth with substantive aspects of the
topic:
(a) Document A/CN.9/WG.IV/WP.69 discussed both paper-based and
electronic bills of lading and other maritime transport documents. In particular,
that document provided an overview of the attempts to deal with bills of lading in
the electronic environment, and made suggestions for model legislative provisions
which were eventually adopted as articles 16 and 17 of the UNCITRAL Model
Law on Electronic Commerce. Furthermore, that document contained a prelimi-
nary analysis of the conditions for establishing the functional equivalence of elec-
tronic and paper-based bills of lading. In this respect, it highlighted as a key issue
the possibility of identifying with certainty the holder of the bill that would be
entitled to delivery of the goods. That issue brought into focus the need to ensure
the uniqueness of the electronic record incorporating the title to the goods;13 and
(b) Document A/CN.9/WG.IV/WP.90 discussed in general legal issues
relating to transfer of rights in tangible goods and other rights. It offered a com-
parative description of the methods used for the transfer of property interests in
tangible property and for the perfection of security interests, and of the challenges
posed by the transposition of those methods to the electronic environment. It also
provided an update on efforts aimed at enabling the use of electronic means in the
transfer of rights in tangible goods. With respect to documents of title and nego-
tiable instruments, that document stressed the desirability of ensuring control over
the electronic transferable record in a manner equivalent to physical possession,
and suggested that a combination of a registry system and adequately secure tech-
nology could assist in addressing issues relating to the singularity and authenticity
of the electronic record.14
14. At its forty-first (2008) and forty-second (2009) sessions, the Commission
received proposals from States for work on electronic transferable records.15 After
preparatory work,16 the Commission mandated Working Group IV to undertake
work in the field of electronic transferable records.17
11
Ibid., Forty-ninth Session, Supplement No. 17 (A/49/17), para. 201.
12
Ibid., Fifty-sixth Session, Supplement No. 17 (A/56/17), paras. 291-293. See also A/CN.9/484,
paras. 87-93. For an historical record of previous sessions, see A/CN.9/WG.IV/WP.90, paras. 1-4.
13
A/CN.9/WG.IV/WP.69, para. 92.
14
A/CN.9/WG.IV/WP.90, paras. 35-37.
Official Records of the General Assembly, Sixty-third Session, Supplement No. 17 and corrigendum
15
(A/63/17 and Corr.1), para. 335; and ibid., Sixty-fourth Session, Supplement No. 17 (A/64/17), para. 338.
16
Ibid., Sixty-fifth Session, Supplement No. 17 (A/65/17), paras. 245-247 and 250; and ibid.,
Sixty-sixth Session, Supplement No. 17 (A/66/17), paras. 232-235.
17
Ibid., Sixty-sixth Session, Supplement No. 17 (A/66/17), para. 238.
15. The Working Group worked in that field from its forty-fifth session (Vienna,
10-14 October 2011) to its fifty-fourth session (Vienna, 31 October-4 November
2016).18 At its forty-seventh session (New York, 13-17 May 2013), the Working
Group reached the general understanding that its work should be guided by the
principles of functional equivalence and technological neutrality, and should not
deal with matters governed by substantive law.19 At its fiftieth session (Vienna,
10-14 November 2014), the Working Group agreed to proceed with the prepara-
tion of a draft model law on electronic transferable records20 with priority given to
the preparation of provisions dealing with electronic equivalents of paper-based
transferable documents or instruments.21 At its fifty-fourth session (Vienna,
31 October-4 November 2016), the Working Group completed its work on the
preparation of a draft model law on electronic transferable records with accompa-
nying explanatory materials. It authorized the transmission of the text (a) for
comments by Governments and international organizations invited to sessions of
the Working Group and (b) to the Commission for consideration at its fiftieth
session, in 2017, together with any comments from Governments and international
organizations.22
16. At its forty-fifth (2012) to forty-ninth (2016) sessions, the Commission

considered the progress report of the Working Group, reaffirming its mandate and
endorsing its decision to prepare a model law with explanatory materials.23 At its
forty-ninth session (2016), the Commission noted that the draft model law being
prepared by the Working Group focused on domestic aspects of the use of
electronic transferable records equivalent to paper-based transferable documents
or instruments, and that international aspects of the use of those records, as well
as the use of transferable records existing only in electronic form, would be
addressed at a later stage.24
17. At its fiftieth session, in 2017, the Commission had before it: (a) the report
of Working Group IV (Electronic Commerce) on the work of its fifty-fourth
session (Vienna, 31 October-4 November 2016);25 (b) a draft model law on
18
For the reports of the Working Group on the work of those sessions, see A/CN.9/737,
A/CN.9/761, A/CN.9/768, A/CN.9/797, A/CN.9/804, A/CN.9/828, A/CN.9/834, A/CN.9/863,
A/CN.9/869 and A/CN.9/897.
19
A/CN.9/768, para. 14.
20
A/CN.9/828, para. 23.
21
A/CN.9/828, para. 30.
22
A/CN.9/897, para. 20.
23
Official Records of the General Assembly, Sixty-seventh Session, Supplement No. 17 (A/67/17),
para. 90; ibid., Sixty-eighth Session, Supplement No. 17 (A/68/17), para. 230; ibid., Sixty-ninth Session,
Supplement No. 17 (A/69/17), para. 149; ibid., Seventieth Session, Supplement No. 17 (A/70/17),
para. 231; and ibid., Seventy-first Session, Supplement No. 17 (A/71/17), para. 226.
24
Ibid., Seventy-first Session, Supplement No. 17 (A/71/17), para. 226.
25
A/CN.9/897.
electronic transferable records with explanatory notes;26 (c) a compilation of

comments by Governments and international organizations on the draft model law
and explanatory notes;27 and (d) a note by the Secretariat on proposed amend-
ments to the draft explanatory notes and additional issues for consideration by the
Commission.28 After deliberations, the Commission adopted the Model Law29 and
approved its Explanatory Note.30
A/CN.9/920.
26
A/CN.9/921 and Add.1-3.

27
28
A/CN.9/922.
29
Official Records of the General Assembly, Seventy-second Session, Supplement No. 17 (A/72/17),
annex I.
30
Ibid., chapter III, section A.
II. Article-by-article commentary
Chapter I. General provisions

Article 1. Scope of application
Paragraph 1
18. The Model Law provides generic rules that may apply to various types of
electronic transferable records based on the principle of technological neutrality
and a functional equivalence approach. The principle of technological neutrality
entails adopting a system-neutral approach, enabling the use of various models
whether based on registry, token, distributed ledger or other technology.
19. Article 2, paragraph 2, of the Electronic Communications Convention pro-

vided a starting point for defining the scope of application of the Model Law. That
provision excludes from the scope of application of the Electronic Communica-
tions Convention “bills of exchange, promissory notes, consignment notes, bills of
lading, warehouse receipts or any transferable document or instrument that entitles
the bearer or beneficiary to claim the delivery of goods or the payment of a sum
of money”. That exclusion is due to the fact that at the time of the adoption of the
Convention “finding a solution for this problem [of the legal treatment of electronic
transferable records] required a combination of legal, technological and business
solutions, which had not yet been fully developed and tested”.31
20. The Model Law focuses on the transferability of the record and not on its
negotiability on the understanding that negotiability relates to the underlying rights
of the holder of the instrument, which fall under substantive law.
21. Certain documents or instruments, which are generally transferable, but whose
transferability is limited due to other agreements, do not fall under the definition
of “transferable document or instrument” contained in the Model Law (see below,
paras. 36-37). The Model Law would therefore not apply to those documents or
31
United Nations Convention on the Use of Electronic Communications in International Con-
tracts (New York, 2005), Explanatory Note, United Nations Publication Sales No. E.07.V.2, para. 81.
23
instruments. However, that conclusion should not be interpreted as preventing the

issuance of those documents or instruments in an electronic transferable records
management system since such prohibition is likely to result in unnecessary mul-
tiplication of systems and increased costs.
Paragraph 2
22. Paragraph 2 sets forth the general principle that the Model Law does not
affect substantive law, including rules of private international law, applicable to
transferable documents or instruments. Hence, the same substantive law applies
to a transferable document or instrument and to the electronic transferable record
containing the same information as that transferable document or instrument.
That general principle applies to each step of the life cycle of an electronic trans-
ferable record.
23. One consequence of the rule contained in paragraph 2 is that the Model Law
is not intended to be used to create electronic transferable records that do not
have an equivalent transferable document or instrument. Allowing such creation
by party autonomy would circumvent the principle of numerus clausus of transfer-
able documents or instruments, where that principle is applicable (see para. 51
below).
24. During the preparation of the Model Law, UNCITRAL agreed that certain
issues related to electronic transferable records did not require a dedicated provi-
sion, since those issues were matters of substantive law. Such matters include the
requirements and legal effects of:
(a) The definition of “performance of an obligation”;
(b) The issuance of an electronic transferable record to bearer;
(c) The change of the modalities for circulation from an electronic transfer-
able record issued to bearer to an electronic transferable record issued to the order
of a named person, and conversely (“blank endorsement”);
(d) The reissuance of an electronic transferable record (see also below,
paras. 168 and 172);
(e) Division and consolidation of electronic transferable records; and
(f) The use of an electronic transferable record, including as collateral for
security rights purposes (see below, paras. 26 and 108).
25. The explicit reference to consumer protection law aims at highlighting the
interaction between that law and the Model Law and represents an application of
the general principle that the Model Law does not affect the substantive law appli-
cable to transferable documents or instruments.
Paragraph 3
26. Paragraph 3 clarifies that the Model Law does not apply to investment secu-
rities. The general determination as to which instruments are to be counted as
securities is a matter of substantive law. The term “investment instruments” is
understood to include derivative instruments, money market instruments and any
other financial product available for investment. The term “securities” does not
refer to the use of electronic transferable records as collateral and therefore the
Model Law does not prevent the use of electronic transferable records for security
rights purposes.
27. The purpose of paragraph 3 is to permit the exclusion of certain documents

or instruments from the scope of the Model Law. To that end, paragraph 3 includes
an open-ended exclusion list that permits application of the Model Law according
to the needs of each enacting jurisdiction, thus providing both flexibility and clarity
on the scope of application of the Model Law.
28. The footnote to paragraph 3 highlights three possible types of exclusions and
does not prevent enacting jurisdictions from adding other types of exclusions
according to their needs:
(a) Certain instruments or documents, such as letters of credit, which may
be considered transferable documents or instruments in some jurisdictions but not
in others. In that respect, it should be noted that national legislation does not define
transferable documents and instruments in a uniform manner;
(b) Documents or instruments falling under the scope of the Convention
Providing a Uniform Law for Bills of Exchange and Promissory Notes (Geneva,
1930) and of the Convention Providing a Uniform Law for Cheques (Geneva,
1931) (the “Geneva Conventions”) in order to avoid possible conflicts between
the Geneva Conventions and the Model Law, regardless of whether the Geneva
Conventions are in force or not in the jurisdiction enacting the Model Law (see
below, paras. 30-33);
(c) Electronic transferable records that exist only in an electronic environ-
ment. Such exclusion could be useful in jurisdictions allowing for the use of both
electronic transferable records that are the functional equivalent of transferable
documents or instruments and of electronic transferable records that exist only in
an electronic environment. In that respect, it should be noted that a provision
allowing for the application on a residual basis of the Model Law to electronic
transferable records that exist only in an electronic environment, so that in case of
conflict the Model Law would not prevail over the law applicable to such records,
was not inserted in the Model Law. That decision was taken due to concerns with
respect to the relationship between the general principles underlying the Model
Law and the general principles governing laws of a different nature.
29. The list of possible exclusions provided in the footnote to paragraph 3 is purely
illustrative. Other subject matter that could be excluded from the scope of appli-
cation of the Model Law include transport documents and electronic transport
records falling under the scope of application of the Rotterdam Rules.
The Geneva Conventions
30. During the preparation of the Model Law, different views have been expressed
on the interaction between the Model Law and the Geneva Conventions.
31. One view expressed was that formalism was a fundamental principle under-
pinning the Geneva Conventions that prevented the use of electronic means and
therefore the instruments falling under the scope of those Conventions should
always be excluded from the scope of the Model Law. In order to accommodate
that view, the Model Law permits the exclusion of the documents and instruments
falling under the scope of the Geneva Conventions (see above, subpara. 28(b)).
32. Jurisdictions adhering to that view and wishing to enable the use of electronic
versions of the documents and instruments falling under the scope of the Geneva
Conventions may consider introducing electronic transferable records existing only
in an electronic environment. Those electronic transferable records existing only
in an electronic environment will neither be legally the documents and instruments
falling under the scope of the Geneva Conventions nor will they fall under the
scope of the Model Law.
33. Another view expressed was that the scope of application of the Model Law
should include instruments falling under the scope of the Geneva Conventions on
the understanding that the Model Law generally aims at overcoming obstacles to
the use of electronic means arising from form requirements relating to the use of
paper-based transferable documents or instruments.
References
A/CN.9/761, paragraphs 18-25, 28-30; A/CN.9/768, paragraphs 17-24;

A/CN.9/797, paragraphs 16-20, 27-28, 65, 109-112; A/CN.9/828, para-
graphs 24-30, 81-84; A/CN.9/834, paragraphs 72-73; A/CN.9/863, para-
graphs 17-22; A/CN.9/869, paragraphs 19-23.
Article 2. Definitions
34. The definition of “electronic record” builds upon the definition of “data message”
contained in the UNCITRAL Model Law on Electronic Commerce (1996) and in
the Electronic Communications Convention and aims to clarify that electronic

records may, but do not need to, include a set of composite information. It high-
lights the fact that information may be associated with the electronic transferable
record at the time of issuance or at any time before or after (e.g., information related
to endorsement). In particular, the generation of metadata does not necessarily
take place after the generation of a record, but could also precede it. The composite
nature of an electronic transferable record is particularly relevant for the notion of
“integrity” contained in article 10, paragraph 2, of the Model Law.
35. Moreover, the definition of “electronic record” allows for the possibility that
in certain electronic transferable records management systems data elements may,
taken together, provide the information constituting the electronic transferable
record, but with no discrete record constituting in itself the electronic transferable
record. The word “logically” refers to computer software and not to human logic.
36. The Model Law contains a definition of “electronic transferable record”. For
comments on the definition of “electronic transferable record” see below,
paras. 86-88.
37. The definition of “transferable document or instrument” focuses on the key

functions of transferability and of providing a title to performance. It does not aim
to affect the principle that substantive law should determine the rights of the
possessor.
38. Applicable substantive law should determine which documents or instruments

are transferable in the various jurisdictions. An indicative list of transferable doc-
uments or instruments, inspired by article 2, paragraph 2, of the Electronic Com-
munications Convention, includes: bills of exchange; cheques; promissory notes;
consignment notes; bills of lading; warehouse receipts; insurance certificates;32 and
air waybills.
32
The reference to insurance certificates should not be understood as referring to various types
of certificates and other documents required and issued under certain treaties concluded by the
International Maritime Organization (IMO). Those documents are not “transferable documents or
instruments” in the meaning of article 2 of the Model Law and therefore the Model Law would not
be applicable. In particular, “insurance certificates” issued to fulfil obligations contained in certain
IMO treaties do not fall under the definition of “transferable documents or instruments”. For instance,
the 1992 International Convention on Civil Liability for Oil Pollution Damage, the 2007 Nairobi
International Convention on the Removal of Wrecks and other so-called “civil liability conventions”
contain the requirement that the ship owner should maintain insurance in place covering the civil
liability and impose an obligation on the government of the ships’ flag to issue a certificate confirming
that the insurance is in place. That certificate is issued on the basis of an insurance policy, which very
often in the shipping industry is called a “Blue Card”. The underlying insurance may be considered
to be “transferable”, but the certificate is an administrative document confirming that the relevant
government body has verified that the insurance policy is in place.
39. As indicated in the definition of “transferable document or instrument”, the

words “transferable document or instrument” refer to a transferable document or
instrument issued on paper (as opposed to an electronic transferable record) in
the Arabic, Chinese, English and Russian language versions of the Model Law. The
words “paper-based” are used for linguistic clarity before the words “transferable
document or instrument” in the French and Spanish language versions of the
Model Law.
References
A/CN.9/768, paragraphs 25-34; A/CN.9/797, paragraphs 21-28, 43-45;

A/CN.9/828, paragraph 31; A/CN.9/834, paragraphs 25-26, 95-98 and 100;
A/CN.9/863, paragraphs 88-102; A/CN.9/869, paragraphs 24-27.
Article 3. Interpretation
International origin and promotion of uniform interpretation
40. Article 3 is intended to draw the attention of courts and other authorities to
the fact that domestic enactments of the Model Law should be interpreted with
reference to their international origin and the need to promote their uniform inter-
pretation in light of that origin. The uniform interpretation of UNCITRAL texts
is a key element in ensuring predictability of the law applicable to commercial
transactions across borders.
41. Similar wording appears in several UNCITRAL texts, including in article 3

of the UNCITRAL Model Law on Electronic Commerce and article 4 of the
UNCITRAL Model Law on Electronic Signatures, and was first introduced in
article 7 of the Convention on the Limitation Period in the International Sale
of Goods (New York, 1974).33 The words “This Law is derived from a model law
of international origin” emphasize that the law constitutes an enactment of a
model law with international origin. Those words are not contained in pre-existing
UNCITRAL texts.
42. Article 3, unlike other provisions contained in UNCITRAL texts and dealing
with their international origin and uniform interpretation, does not refer to the
notion of good faith. That exclusion is due to the fact that the principle of good
faith has a specific meaning with respect to transferable documents or instruments,
which is distinct from the general principle of good faith in international trade law.
United Nations, Treaty Series, vol. 1511, No. 26119, p. 3.

33
The principle of good faith as a general principle of international law could be

included in the general principles on which the Model Law is based.
General principles
43. The notion of “general principles” has been used in several UNCITRAL texts.
Article 7 of the United Nations Convention on Contracts for the International Sale
of Goods (Vienna, 1980)34 is the provision containing that notion that has been
most interpreted by case law.35
44. The general principles of the law governing electronic communications, namely
the principles of non-discrimination against electronic communications, techno-
logical neutrality and functional equivalence, which have already been identified
and formulated in other UNCITRAL texts, are the fundamental principles under-
lying the Model Law.
45. The exact content and operation of the notion of general principles referred
to in paragraph 2 may be clarified progressively in light of the increasing use, appli-
cation and interpretation of the Model Law (for the principle of good faith, see
above, para. 42). Such progressive clarification provides flexibility in the interpre-
tation of the Model Law, which may be useful in ensuring the ability of the Model
Law to accommodate evolving commercial practices and business needs.
References
A/CN.9/768, paragraph 35; A/CN.9/797, paragraph 29; A/CN.9/869,

paragraphs 28-31.
Article 4. Party autonomy and privity of contract
46. Party autonomy is a fundamental principle underpinning commercial law and

UNCITRAL texts that aims to promote international trade as well as technological
innovation and the development of new business practices. Moreover, party auton-
omy may provide desired flexibility in the implementation of the Model Law.
United Nations, Treaty Series, vol. 1489, No. 25567, p. 3.

34
See UNCITRAL Digest of Case Law on the United Nations Convention on Contracts for the
35
International Sale of Goods (2016 and subsequent updates), sub article 7.

47. However, UNCITRAL texts on electronic commerce contain some limits to

party autonomy in order to avoid conflicts with rules of mandatory application,
such as those on public policy.
48. In particular, article 4 of the UNCITRAL Model Law on Electronic

Commerce allows variation by agreement of the provisions on electronic
communications, but sets limits to variation by agreement of functional
equivalence rules, also to avoid circumventing form requirements of mandatory
application. Moreover, party autonomy may not affect rights and obligations of
third parties.36
49. In addition, article 5 of the UNCITRAL Model Law on Electronic

Signatures indicates that parties may derogate from all provisions of that Model
Law, unless derogation would not be valid or effective under applicable law, i.e. it
would affect rules of mandatory application such as those relating to public policy.37
A similar approach is adopted in article 3 of the Electronic Communications
Convention.38
50. Similarly, the Model Law recognizes party autonomy within the limits of man-
datory law and without affecting rights and obligations of third parties. The Model
Law does not indicate which provisions may be derogated from or varied by agree-
ment; it is for enacting jurisdictions to identify them. In doing so, it may be useful
to consider that variance in the enactment of the Model Law may significantly
disrupt uniformity. In that respect, enacting jurisdictions should carefully consider
the possibility of allowing derogation from the fundamental principles underlying
the Model Law (see above, para. 44) and, in particular, from functional equivalence
rules, and the consequences thereof.
51. Certain jurisdictions, in particular those belonging to the civil law tradition,
recognize the principle of numerus clausus of transferable documents or instru-
ments. The Model Law does not aim to offer means of circumventing that principle
by agreement, in line with the general principle that the Model Law does not affect
substantive law provisions. At the same time, and based on the same general prin-
ciple, the Model Law does not limit in any way the ability of the parties to derogate
from or vary substantive law.
52. Therefore, a careful analysis is necessary to ascertain which provisions of the

Model Law could be derogated from or varied by the parties. The Model Law leaves
this assessment to the enacting jurisdiction, in order to accommodate differences
UNCITRAL Model Law on Electronic Commerce, Guide to Enactment, paras. 44-45.

36
UNCITRAL Model Law on Electronic Signatures, Guide to Enactment, paras. 111-114.

37
38
United Nations Convention on the Use of Electronic Communications in International
Contracts, Explanatory Note, para. 85.
in legal systems. To that end, paragraph 1 contains square brackets, in which the
enacting jurisdiction could identify the provisions which could be derogated from
or varied (see also below, para. 138).
References
A/72/17, paragraph 83; A/CN.9/768, paragraphs 36-37; A/CN.9/797, para-

graphs 30-32 and 113; A/CN.9/869, paragraphs 32-44.
Article 5. Information requirements
53. Article 5, inspired by article 7 of the Electronic Communications

Convention,39 highlights the need to comply with possible disclosure obligations
that might exist under other law. Examples of those information requirements
include information to be provided under consumer protection law and to prevent
money-laundering and other criminal activities.
54. The obligation to comply with those information requirements arises from the
principle contained in article 1, paragraph 2, of the Model Law that the Model Law
does not affect substantive law. The reference to other law containing the informa-
tion requirements provides desirable flexibility since those requirements are likely
to change over time. Article 5 does not deal with the legal consequences attached
to violating information requirements, which are to be found, like the information
requirement itself, in other law.
55. Article 5 does not prohibit the issuance of an electronic transferable record to
bearer when permitted under substantive law. In that respect, it should be noted
that an electronic transferable records management system may allow for identifi-
cation of the person in control of an electronic transferable record for regulatory
purposes (e.g., anti-money-laundering) but not for commercial law purposes (e.g.,
for an action in recourse).
References
A/CN.9/768, paragraph 38; A/CN.9/797, paragraph 33; A/CN.9/869, paragraphs

45-47.

39
Contracts, Explanatory Note, paras. 122-128.


56. As a general rule, according to article 10, paragraph 1(a), of the Model Law,
an electronic transferable record should contain the information required to be
contained in a transferable document or instrument (see below, paras. 89-93; see
also below, paras. 164 and 179). The Model Law does not require the insertion of
information additional to that contained in a transferable document or instrument
for the issuance and use of an electronic transferable record. Requiring that addi-
tional information would create a legal requirement that does not exist with respect
to the issuance and use of transferable documents or instruments and therefore
could constitute discrimination against the use of electronic means.
57. Adding to that general rule, article 6 clarifies that the electronic transferable
record may, but does not need to contain information additional to that contained
in the transferable document or instrument. In other words, while the Model Law
does not impose any additional information requirement for electronic transferable
records, it also does not prevent the inclusion in those records of additional infor-
mation that may not be contained in a transferable document or instrument due
to the different nature of the two media.
58. Examples of such additional information include information necessary for

technical reasons, such as metadata or a unique identifier. Moreover, such addi-
tional information could consist of dynamic information, i.e. information that may
change periodically or continuously, based on an external source, which may be
included in an electronic transferable record due to its nature but not in a trans-
ferable document or instrument. The price of a publicly-traded commodity and
the position of a vessel are examples of dynamic information. However, article 1,
paragraph 2, of the Model Law precludes inclusion in an electronic transferable
record of additional information not permitted under substantive law.
References
A/CN.9/761, paragraph 32; A/CN.9/768, paragraph 66; A/CN.9/797, para-

graphs 70-73; A/CN.9/869, paragraphs 101-102.
Article 7. Legal recognition of an electronic

transferable record
Paragraph 1
59. Paragraph 1 restates the general principle of non-discrimination against the

use of electronic means that is set forth in article 5 of the UNCITRAL Model Law
on Electronic Commerce40 and in article 8, paragraph 1, of the Electronic Com-

munications Convention.41
60. By stating that information “shall not be denied legal effect, validity or enforce-
ability on the sole ground that it is in electronic form”, paragraph 1 merely indicates
that the form in which an electronic transferable record is presented or retained
cannot be used as the only reason for which that record would be denied legal
effectiveness, validity or enforceability. However, the provision should not be mis-
interpreted as establishing the legal validity of an electronic transferable record or
any information it contains.
Paragraphs 2 and 3
61. Paragraphs 2 and 3 are inspired by article 8, paragraph 2, of the Electronic

Communications Convention.42
62. Paragraph 2 clarifies that legal recognition of electronic transferable records

does not imply a requirement to use or accept them. However, this does not pre-
clude enacting jurisdictions from mandating the use of electronic transferable
records, at least with respect to some categories of users and some types of trans-
ferable documents and instruments, in light of the policy goals pursued.
63. The requirement of consent to the use of an electronic transferable record is

a general one and applies to all instances where an electronic transferable record
is used under the Model Law and to all parties involved in the life cycle of the
electronic transferable record. Therefore, other provisions of the Model Law do
not contain an explicit reference to consent.
64. The consent to using electronic transferable records does not need to be
expressly indicated or given in any particular form and may be inferred from all
circumstances, including parties’ conduct. While absolute certainty can be accom-
plished by obtaining an explicit consent before using an electronic transferable
record, such explicit consent should not be mandated as it would create an unrea-
sonable barrier to the use of electronic means.
65. Certain systems used for electronic transferable records management, such as
registry-based systems, may require acceptance of system rules prior to authorizing
UNCITRAL Model Law on Electronic Commerce, Guide to Enactment, para. 46.

40

41

42
access to the system. Those system rules may include or imply consent to the use
of electronic transferable records.
66. Consent to the use of an electronic transferable record in systems that lack a
centralized operator, such as some token-based and distributed ledger-based sys-
tems, may be implicit and inferred by circumstances such as exercise of control of
the record or performance of the obligation contained in the record.
References
A/CN.9/768, paragraphs 39, 57-58; A/CN.9/797, paragraphs 34-35, 62-63;

A/CN.9/804, paragraph 17; A/CN.9/869, paragraphs 93 and 94.
Chapter II. Provisions on
functional equivalence
67. Any reference to a legal requirement contained in the provisions of the Model
Law setting forth functional equivalence rules implies a reference to the conse-
quences arising when a legal requirement is not met, making it unnecessary to
explicitly refer to those consequences. Accordingly, the Model Law does not con-
tain the words “or provides consequences” after the words “when the law requires”.
Reference
A/CN.9/834, paragraphs 43 and 46.
Techniques of enactment of articles 8 and 9
68. Provisions indicating the requirements for functional equivalence of the

notions of “writing” and “signature” in an electronic environment are of fundamen-
tal importance for the application of UNCITRAL texts on electronic commerce.
While the enactment of the Model Law requires the adoption of those functional
equivalence standards, such adoption could take place with different techniques.
69. A law on electronic transactions is likely to contain such functional

equivalence provisions, possibly based on UNCITRAL uniform texts. The general
rules on functional equivalence between electronic and written form contained in
the law on electronic transactions apply to all electronic records that are not
transferable.
70. If the Model Law is adopted by consolidation with an enactment of the

UNCITRAL Model Law on Electronic Commerce or other text providing general
rules on functional equivalence, it may be possible to adopt provisions for the
functional equivalence of the paper-based notions of “writing” and “signature” that
will apply to both transferable and non-transferable electronic records.
71. However, it may also be the case that those functional equivalence provisions
do not exist in a jurisdiction wishing to enact the Model Law. In that case, the
adoption of articles 8 and 9 would address the legislative need.
35
72. In any case, careful consideration should be given to the consequences of

establishing a dual regime setting forth different functional equivalence require-
ments for electronic records and electronic transferable records.
Reference
A/CN.9/897, paragraphs 54-57.
Article 8. Writing
73. Article 8 establishes the requirements for the functional equivalence of the
written form with respect to information contained in or related to electronic
transferable records. It is inspired by article 6, paragraph 1, of the UNCITRAL
Model Law on Electronic Commerce.43 Article 8 refers to the notion of “informa-
tion” rather than “communication” as not all relevant information might necessarily
be communicated, depending on the system chosen for electronic transferable
records management.
74. Article 8 sets forth a functional equivalence rule for the notion of “writing”
with respect to electronic transferable records only. The use of writing is instru-
mental in performing several actions that may occur during the life cycle of an
electronic transferable record, such as endorsement (see below, para. 151). The
provisions on functional equivalence of written and electronic form contained in
the law on electronic transactions apply to all electronic records that are not
transferable.
Reference
A/CN.9/768, paragraphs 40-44; A/CN.9/797, paragraphs 36-39; A/CN.9/804,

paragraphs 18-19.
Article 9. Signature
75. Article 9 establishes the requirements for the functional equivalence of “sig-
nature” when substantive law either contains an explicit signature requirement or
provides consequences for the absence of a signature (implicit signature require-
ment). The words “or permits” clarify that article 9 should apply also to cases when
the law permits, but does not require a signature. Reference to electronic signatures

43
in article 9 of the Model Law is intended also as a reference to electronic seals or

other methods used to enable the signature of a person electronically.
76. Article 9 is inspired by article 7, paragraph 1(a), of the UNCITRAL Model

Law on Electronic Commerce.44 Moreover, following the text of
article 9, paragraph 3, of the Electronic Communications Convention, it refers to
the “intention” of the party so as to better capture the different functions that may
be pursued with the use of an electronic signature.45 The reliability of the method
referred to in article 9 should be assessed according to the general reliability stand-
ard contained in article 12.
77. The reference to the signature requirement being fulfilled “by” an

electronic transferable record is meant to clarify that article 9 applies to
electronic transferable records only and not to other electronic records that are not
transferable but are somehow related to an electronic transferable record. Hence,
article 9 sets forth a functional equivalence rule for the notion of
“signature” with respect to electronic transferable records only.
78. Certain electronic transferable records management systems, such as those

based on distributed ledgers, may identify the signatory by referring to pseudonyms
rather than to real names. That identification, and the possibility of linking pseu-
donym and real name, including based on factual elements to be found outside
distributed ledger systems, could satisfy the requirement to identify the
signatory.
79. The general rule on functional equivalence of electronic and handwritten sig-
natures contained in the law on electronic signatures applies to signatures used in
relation to all electronic records that are not transferable.
Reference
A/CN.9/768, paragraphs 41 and 43; A/CN.9/797, paragraphs 40-47;

A/CN.9/804, paragraph 20; A/CN.9/869, paragraphs 48-49.
Article 10. Transferable documents or instruments
80. Article 10 provides a functional equivalence rule for the use of transferable
documents or instruments by setting forth the requirements to be met by an

44

45

electronic record. The reliability of the method referred to in article 10 should be

assessed according to the general reliability standard contained in article 12.
81. Article 10 represents the outcome of discussions originating from the notion
of “uniqueness” of a transferable document or instrument. The purpose of that
notion is to prevent the circulation of multiple documents or instruments relating
to the same performance and thus to avoid the existence of multiple claims for
performance of the same obligation. Providing a guarantee of uniqueness in an
electronic environment functionally equivalent to an original or authentic docu-
ment or instrument in the paper world has long been considered a peculiar
challenge.
82. Uniqueness is a relative notion that poses technical challenges in an electronic

environment, as providing an absolute guarantee of non-replicability may not be
technically feasible and as the identification of the specific record that is supposed
to constitute the equivalent to the respective transferable document or instrument
is not obvious due to the lack of a tangible medium. In fact, the notion of unique-
ness poses challenges also with respect to transferable documents or instruments,
since paper does not provide an absolute guarantee of non-replicability. However,
a paper document, as a physical object, is by nature unique and, furthermore,
centuries of use of paper in business transactions have provided sufficient informa-
tion to commercial operators for an assessment of the risks associated with the use
of that medium, while practices relating to the use of electronic transferable records
are not yet equally well established.
83. Article 10 aims at preventing the possibility of the existence of multiple claims
to perform the same obligation by combining two approaches, i.e. “singularity” and
“control”.
84. The “singularity” approach requires reliable identification of the electronic

transferable record that entitles its holder to request performance of the obligation
indicated in it, so that multiple claims of the same obligation would be avoided.
The “control” approach focuses on the use of a reliable method to identify the
person in control of the electronic transferable record (see also below, paras.
105-121).
85. One effect of the adoption of the notions of “singularity” and “control” in the
Model Law is the prevention of unauthorized replication of an electronic transfer-
able record by the system.
86. The definition of “electronic transferable record” reflects the functional equiv-
alent approach and refers to electronic transferable records that are equivalent to
transferable documents or instruments. It does not aim to affect the principle that
substantive law should determine the rights of the person in control. Likewise, it
does not aim to describe all the functions possibly related to the use of an electronic
transferable record. For instance, an electronic transferable record may also have
an evidentiary value; the ability of that record to discharge that function will be
assessed under law other than the Model Law.
87. In line with the general approach and the scope of the Model Law, the defi-
nition of “electronic transferable record” is intended to apply to electronic trans-
ferable records that are functionally equivalent to transferable documents or
instruments. Yet, the Model Law does not preclude the development and use of
electronic transferable records that do not have a paper equivalent as those records
are not governed by the Model Law.
88. The definition of “electronic transferable record” does not cover certain doc-
uments or instruments, which are generally transferable, but whose transferability
may be limited due to other agreements, for example in the case of straight bills
of lading. The definition of “electronic transferable record” should not be inter-
preted as preventing the issuance of those documents or instruments in an elec-
tronic transferable records management system (see also above, para. 21).
Substantive law should determine which documents or instruments are
transferable.
Paragraph 1(a)
89. Paragraph 1(a) states that the electronic record should contain the information
required to be in a transferable document or instrument. Since information in a
transferable document or instrument is in writing, its inclusion in an electronic
transferable record must comply with article 8 of the Model Law. The definition
of “electronic record” contained in article 2 of the Model Law clarifies that the
electronic record may, but does not need to, have a composite nature.
90. The inclusion in the electronic transferable record of the information required
to be contained in a transferable document or instrument should allow to deter-
mine the substantive law applicable to that electronic transferable record (e.g., the
law applicable to a bill of lading, rather than the law applicable to a promissory
note). Nevertheless, one electronic transferable record may contain information
that would be required to be contained in more than one type of transferable
document or instrument.
91. A law that does not contain a provision akin to that contained in article 10,
paragraph 1(a), but which sets forth directly the information requirements to be
contained in an electronic transferable record, is likely to provide for electronic
transferable records that are not functionally equivalent to transferable documents
or instruments, but exist only in an electronic environment.
92. Accordingly, an electronic transferable record existing only in electronic form

would not satisfy the requirements of article 10 and would not fall under the
definition of electronic transferable record contained in article 2. Namely, while an
electronic transferable record existing only in electronic form could satisfy other
requirements set forth in the Model Law, that record would define autonomously
the information requirements and therefore would not comply with article 10,
paragraph 1(a).
93. Paragraph 1(a) does not contain any qualifier such as “equivalent”,
“corresponding” or “as having the same purpose” given that under that provision
an electronic transferable record must indicate the same information as the
information required for a transferable document or instrument of the same type.
Insertion of a further qualifier might create uncertainty.
Paragraph 1(b)(i)
94. Paragraph 1(b)(i) sets forth the requirement to identify an electronic record as

the record containing the information necessary to establish that record as the elec-
tronic transferable record. That requirement implements the “singularity” approach.
95. The purpose of the provision is to identify the electronic transferable record
that is the functional equivalent of the transferable document or instrument.
96. The combination of the article “the” and singular noun in the Arabic, English,
French and Spanish language versions of the Model Law suffices to point at the
singularity approach. A qualifier is omitted to avoid interpretative challenges. A
qualifier could be interpreted as referring to the notion of uniqueness, which has
been abandoned and could ultimately foster litigation. A qualifier is used in the
Chinese and Russian language versions of the Model Law because the proper
qualifier may be found in those languages to avoid interpretation problems. All six
language versions are intended to convey the same notion.
97. Unlike other legislation on electronic transferable records, paragraph 1(b)(i)

does not refer to a qualifier such as “authoritative”, “operative” or “definite” to identify
the electronic record as the electronic transferable record. The reasons for that
omission are that: insertion of a qualifier could create interpretative challenges,
especially in certain languages; it could be interpreted as referring to the notion of
“uniqueness”, which has been abandoned; and it could ultimately foster litigation.
Paragraph 1(b)(ii)
98. Paragraph 1(b)(ii) sets forth the requirement that the electronic transferable
record should be capable of being controlled from the time of its creation until it
ceases to have any effect or validity, particularly in order to allow for its transfer.
That requirement implements the “control” approach.
99. The reference to a reliable method with respect to paragraph 1(b)(ii) refers to

the reliability of the system used to render the electronic record capable of being
subject to control. While the same general reliability standard contained in arti-
cle 12 applies to the various articles of the Model Law, and is therefore objective,
the assessment of the reliability of each method is to be carried out in light of the
specific function pursued by the use of that method, and is therefore relative.
Paragraph 1(b)(iii)
100. The notion of integrity is an absolute one. It refers to a fact, and as such, is
objective, i.e. either an electronic transferable record retains integrity or it does not.
The reference to the reliable method used to retain integrity is relative since the
assessment of the reliability of each method is to be carried out in light of the
specific function pursued by the use of that method. The general reliability standard
contained in article 12 applies to the assessment of that method.
Paragraph 2
101. Paragraph 2 sets forth a provision on the assessment of the notion of integ-
rity. It indicates that an electronic transferable record retains integrity when any
set of information related to authorized changes (as opposed to changes of purely
technical nature) remains complete and unaltered from the time of the creation of
the electronic transferable record until it ceases to have any effect or validity. For
example, in practice, verification of the integrity of the electronic transferable
record could be achieved if a reliable assurance is provided of the link between an
electronic signature affixed on the record and the content of that record at the time
the electronic signature was affixed.
102. Paragraph 2 is inspired by article 8, paragraph 3, of the UNCITRAL Model

Law on Electronic Commerce. However, it should be noted that article 8, para-
graph 3(a), of the Model Law on Electronic Commerce refers to a notion of integ-
rity with respect to the use of the notion of “original” that may be more appropriate
for electronic contracting. On the other hand, the notion of integrity contained in
article 10, paragraph 2, of the Model Law necessarily takes into account the fact
that the life cycle of electronic transferable records implies a number of events that
need to be accurately reflected in those records.
103. “Authorized” changes are those changes agreed upon by the parties to
contractual obligations related to electronic transferable records throughout the life
cycle of those records and permitted by the electronic transferable records

management system. The use of the term “authorized” does not address the legit-
imacy of those changes, which would introduce a standard presupposing a legal
assessment under substantive law. For instance, unauthorized changes could include
those performed by a hacker who must compromise the integrity of the electronic
transferable record in order to gain access to it.
104. The words “apart from any change which arises in the normal course of
communication, storage and display” refer to information added to an electronic
transferable record for purely technical purposes. For instance, that information
could include changes necessary to store the electronic transferable records in a
dedicated repository. The same words are used in article 8, paragraph 3(a), of the
UNCITRAL Model Law on Electronic Commerce. However, the notion of purely
technical change should be evaluated against the notion of integrity contained in
the Model Law, which differs from the notion of original contained in the Model
Law on Electronic Commerce (see below, paras. 189-190). The fact that informa-
tion may be added automatically by the electronic transferable records manage-
ment system, for instance in the form of metadata, is not per se evidence that that
information is of a purely technical nature.
References
A/CN.9/768, paragraphs 48-56, 75-76 and 85; A/CN.9/797, paragraphs 47-60;

A/CN.9/804, paragraphs 21-40, 70-75; A/CN.9/828, paragraphs 31-40, 42-49; A/
CN.9/834, paragraphs 21-30, 85-90, 92, 99-108; A/CN.9/869, paragraphs 50-68.
Article 11. Control
105. Article 11 provides a functional equivalence rule for the possession of a

transferable document or instrument. Functional equivalence of possession is
achieved when a reliable method is employed to establish control of that record
by a person and to identify the person in control.
106. The notion of “control”, which is closely related to the requirement

contained in article 10, paragraph 1(b)(ii), is not defined in the Model Law since
it is the functional equivalent of the notion of “possession”, which, in turn, may
vary in each jurisdiction.
107. The Model Law is concerned with identifying a functional equivalent to the
fact of possession. In line with the general principle that the Model Law does not
affect substantive law, the notion of control does not affect or limit the legal con-
sequences arising from possession. Consequently, parties may agree on the
modalities for the exercise of possession, but may not modify the notion of pos-
session itself.
108. The Model Law is not intended to restrict the creation of security rights in
transferable documents or instruments. Thus, control under article 11
provides the functional equivalent in those cases where the security rights would
be created and made effective against third parties by possession of a paper docu-
ment or instrument. The Model Law is also not intended to limit the creation of
security rights where those rights would be made effective against third parties by
their registration in a public registry.
109. The title of article 11 refers to “control” and not to “possession”, thus departing
from the naming style of other articles of the Model Law, since the notion of “control”
is particularly relevant in the Model Law. While a notion of “control” may exist in
national legislation, the notion of “control” contained in article 11 needs to be inter-
preted autonomously in light of the international character of the Model Law.
Paragraph 1
110. Paragraph 1 includes the words “or permits” in order to clarify its application
to cases in which the law merely permits, but does not require possession of a
transferable document or instrument. The reliability of the method referred to in
article 11 should be assessed in accordance with the general reliability standard
contained in article 12.
Paragraph 1(a)
111. Paragraph 1(a) refers to “exclusive” control for reasons of clarity, since the
notion of “control”, similarly to that of “possession”, implies exclusivity in its exer-
cise. Yet, control, like possession, could be exercised concurrently by more than
one person. The concept of “control” does not refer to “legitimate” control, since
this is a matter of substantive law.
112. Although both the notion of “control” and the notion of “singularity” aim at
preventing multiple requests for performance of the same obligation, the two notions
operate independently and should be distinguished (see above, paras. 83-84). For
instance, it is possible to conceive of exclusive control over a multiple record, i.e. a
record that does not meet the requirement of singularity. Conversely, it is also pos-
sible to conceive of non-exclusive control over a single record.
Paragraph 1(b)
113. Paragraph 1(b) requires the person in control of the electronic transferable

record to be reliably identified as such. The person in control of an electronic
transferable record is in the same legal position as the possessor of an equivalent

transferable document or instrument.
114. The reference to the “person in control” of the electronic transferable record
in paragraph 1(b) does not imply that the person is also the rightful person in
control of that record as this is for the substantive law to determine. Further, the
reference to the person in control does not exclude the possibility of having more
than one person exercising control or of attributing selectively control of one elec-
tronic transferable record to multiple entities on the basis of the legal rights attrib-
uted to each entity (e.g., title to property of goods or security interests).
115. The person in control may be a natural or legal person or other entity able
to possess a transferable document or instrument under substantive law. The use
of the services of a third party to exercise exclusive control does not affect exclu-
sivity of control. It neither implies nor excludes the possibility that such a third-
party service provider or any other intermediary is a person in control. The person
in control is to be determined by the applicable substantive law.
116. The requirement to identify the person in control does not imply that an
electronic transferable record in itself should contain the information relating to
the identification of the person in control. Rather, that requirement demands that
the method or system employed to establish control as a whole should perform
the identification function with respect to all concerned parties. Moreover, identi-
fication should not be understood as implying an obligation to name the person
in control, as the Model Law allows for the issuance of electronic transferable
records to bearer, which implies anonymity.
117. Certain electronic transferable records management systems, such as those

based on distributed ledgers, may identify the person in control by referring to
pseudonyms rather than to real names (see above, para. 78). That identification,
and the possibility of linking pseudonym and real name, if need be, would satisfy
the requirement to identify the person in control. In any case, anonymity for com-
mercial law purposes may not preclude the possibility of identifying the person in
control for other purposes, such as law enforcement (see above, para. 55).
118. Article 11 will also assist in carrying out those steps occurring in the life
cycle of the electronic transferable record that require demonstration of control of
that record. For instance, the notion of “presentation” in the paper environment
relies on demonstration of possession of a transferable document or instrument as
its core element. That demonstration may be given by identifying the person in
control. In practice, the electronic transferable records management system may
rely on the requirement to identify the person in control contained in article 11
when dealing with presentation of a record. Accordingly, the Model Law does not
contain a separate provision on presentation.
Paragraph 2
119. Transferable documents or instruments, and therefore also electronic trans-
ferable records, may circulate by delivery and by endorsement. Paragraph 2 sets
forth that transfer of control over an electronic transferable record is the functional
equivalent of delivery, i.e. transfer of possession, of a transferable document or
instrument (see also below, paras. 150-154). Transfer of control implies transfer of
exclusive control since the notion of “control”, similarly to that of “possession”,
implies exclusivity in its exercise. The considerations on the joint exercise of control
apply also to transfer of control (see above, paras. 111 and 114).
120. Paragraph 2 includes the words “or permits” in order to clarify its application
to cases in which the law merely permits, but does not require, transfer of posses-
sion of a transferable document or instrument.
121. The delivery of a transferable document or instrument may be a necessary

step in the life cycle of that document or instrument. For instance, the request for
delivery of goods typically requires the surrender of a bill of lading. The Model
Law does not contain specific provisions on surrender, since paragraph 2, which
governs transfer of control as the functional equivalent of transfer of possession
and thus of delivery, would apply also to those cases.
References
A/CN.9/761, paragraphs 24-25, 38-41 and 50-58; A/CN.9/768, paragraphs 45-47

and 75-85; A/CN.9/797, paragraphs 66 and 74-90; A/CN.9/804, paragraphs
51-70; A/CN.9/828, paragraphs 50-67; A/CN.9/834, paragraphs 31-33 and 83-94;
A/CN.9/863, paragraphs 27-36 and 99-102; A/CN.9/869, paragraphs 103-110.
Chapter III. Use of electronic
Article 12. General reliability standard
122. Article 12 provides a consistent and technology neutral general standard on

the assessment of reliability that applies whenever a provision of the Model Law
requires the use of a “reliable method” for the fulfilment of its functions. The con-
cept of reliability refers to the reliability of the method used. In turn, reference to
the method implies reference to any system used to implement that method.
123. Article 12 aims to increase legal certainty by indicating elements that may
be relevant in assessing reliability. The list of circumstances contained in article 12
is illustrative and, as such, not exhaustive and does not prevent the parties from
allocating liability contractually (see also paras. 138-139 below). The general reli-
ability standard is applicable to all electronic transferable records management
system providers and not only to third-party service providers.
124. Though article 12 aims at providing guidance on the assessment of the reli-
ability of the electronic transferable records management system in case of dispute
(“ex post” reliability assessment), its content will necessarily also influence the
design of the system (“ex ante” reliability assessment) since system designers pur-
sue offering the provision of reliable systems.
125. Each provision of the Model Law referring to the use of a reliable method
aims at fulfilling a different function. Accordingly, the reference to “the purposes
of articles” contained in the chapeau of article 12 aims to clarify that the assessment
of the reliability of each relevant method should be carried out separately in light
of the function specifically pursued by the use of that method. That approach pro-
vides needed flexibility when assessing the application of the reliability standard
in practice as it allows customization of the reliability assessment to each function
fulfilled by the system.
46
Subparagraph (a)
126. Subparagraph (a) contains a list of circumstances that may assist in deter-
mining reliability. The words “which may include” clarify that the list is only illus-
trative and not exhaustive. The words “all relevant circumstances” include the
purpose for which the information contained in the electronic transferable record
was generated.
127. The list of circumstances aims at achieving a balance between providing

guidance on the assessment of reliability and imposing requirements that may
result in excessive costs for business, ultimately hampering electronic commerce
and leading to increased litigation on complex technical matters. Additional possi-
bly relevant circumstances include: quality of staff; sufficient financial resources
and liability insurance; and the existence of a notification procedure for security
breaches as well as of reliable audit trails.
“Operational rules”
128. Subparagraph (a)(i) refers to “operational rules” that are usually contained

in an operating manual whose application could be monitored by an oversight body
and that, as such, may not have a purely contractual nature. The words “relevant
to the assessment of ” clarify that only operational rules regarding the reliability of
the system, and not operational rules in general, should be considered.
“Assurance of data integrity”
129. Subparagraph (a)(ii) refers to the “assurance of data integrity” as an absolute

notion since data integrity cannot be expressed by reference to a level. The notion
of “integrity” as an element in the assessment of the general reliability standard is
different from that contained in article 10. More precisely, the notion of integrity
contained in subparagraph (a)(ii) applies when integrity is in fact relevant to assess-
ing the reliability of the method used and, ultimately, the achievement of functional
equivalence. As such, that notion is also relevant to articles other than article 10.
“Prevent unauthorized access to and use of the system”
130. This circumstance refers to the ability to prevent access to and use of the
system by parties, including third parties, not authorized to do so, as authorization
of access to and use of the system is a notion relevant to all parties. In that respect,
it should be noted that the notion of integrity in the Model Law refers to “author-
ized” changes. A reliable method should therefore prevent unauthorized changes.
Moreover, the notion of control is based on exclusivity, which presupposes the

ability to exclude parties that do not have authorized access to the system.
“Security of hardware and software”
131. Reference to “security of hardware and software” is included in the list of

criteria for the assessment of the general reliability standard for electronic transferable
records, since security of hardware and software has a direct impact on the reliability
of the method used. A similar reference is found in article 10, subparagraph (b), of
the UNCITRAL Model Law on Electronic Signatures, which refers to the “quality
of hardware and software systems” as one of the factors to be considered in deter-
mining the trustworthiness of systems and procedures utilized by a certification ser-
vice provider. The term “security” is used in subparagraph (a)(iv) instead of “quality”
since the notion of security lends itself more easily to an objective assessment.
“Regularity and extent of audit by an independent body”
132. The existence of regular accurate audits carried out by an independent body
may be seen as evidence of validation of the reliability of the system by a third party.
Similarly, article 10, subparagraph (e), of the UNCITRAL Model Law on Electronic
Signatures refers to the “regularity and extent of audit by an independent body” as
one of the factors to be considered for determining the trustworthiness of systems,
procedures and human resources utilized by a certification service provider.
“Declaration by a supervisory body, an accreditation body or a voluntary

scheme regarding the reliability of the method”
133. The criterion of “declaration by a supervisory body, an accreditation body

or a voluntary scheme regarding the reliability of the method” is inspired by
article 10, subparagraph (f), of the UNCITRAL Model Law on Electronic
Signatures, which refers to the “declaration by the State, an accreditation body or
the certification service provider regarding compliance with or existence of the
foregoing” as one of the factors to be regarded to determine the trustworthiness
of systems, procedures and human resources utilized by a certification service
provider. A declaration by such body may guarantee a certain level of objectivity
in the assessment of the reliability of the method used.
“Any applicable industry standard”
134. The reference to “any applicable industry standard” stems from a suggestion
to refer to internationally accepted standards and practices in order to avoid
increased litigation based on complex technical matters and to allow flexibility in

technology choice while providing guidance. The fact that electronic transferable
records management systems are likely to be designed and maintained by highly
specialized professionals may also be relevant in that context.
135. Reference to “any applicable industry standard” is more suitable than refer-
ence to “industry best practices” since the former can be more easily ascertained.
Applicable industry standards should preferably be internationally recognized. In
fact, the use of international standards may promote the emergence of a common
notion of reliability across jurisdictions. Reference to industry standards should
not be interpreted so as to violate the principle of technological neutrality or to
favour the industry standards of one sector over those of others, which could be
detrimental to supply chain management.
Subparagraph (b)
136. Subparagraph (b) provides a “safety clause” with the purpose of preventing

frivolous litigation by validating methods that have in fact achieved their function
regardless of any assessment of their reliability. It refers to the fulfilment of the
function in the specific case under dispute and does not aim at predicting future
reliability based on past performance of the method. The provision may operate
with respect to any of the functions pursued with the use of electronic transferable
records. A similar mechanism is contained in article 9, paragraph 3(b)(ii), of the
Electronic Communications Convention, relating to the functional equivalence of
electronic signatures.
137. In practice, the fact that the method used has achieved the function pursued
with its use will prevent any discussion on the assessment of its reliability according
to subparagraph (a).
Party autonomy
138. Article 12 does not contain an explicit reference to the relevance of an

agreement of the parties when assessing reliability. That omission is due to the
desire to provide an objective reliability standard and therefore not to make it
dependent on party autonomy. In particular, the inclusion of a reference to party
autonomy could be read as: (a) introducing different standards for the assessment
of reliability whose application would depend on the parties involved; (b) leading
to inconsistent findings in respect of the validity of the electronic transferable
record; and (c) circumventing substantive law, especially provisions of mandatory
application, and ultimately affecting third parties. Hence, party autonomy with
respect to the assessment of reliability is limited to allocation of liability under the
limits set forth in applicable law.
139. The relevance of party agreements may be particularly significant in the

context of closed systems or when referring to industry standards, since those
agreements often contain useful guidance on technical details and may promote
technological innovation within the limits of mandatory substantive law.
References
A/CN.9/804, paragraphs 41-49 and 63; A/CN.9/828, paragraphs 47-49;

Article 13. Indication of time and place in

140. Significant legal consequences are attached to the indication of time and
place in transferable documents and instruments. For instance, recording the time
of an endorsement is necessary to establish the sequence of the obligors in the
action of recourse. Article 13 allows for that indication in electronic transferable
records. In the case of endorsements, this is particularly important given that the
dematerialized nature of electronic transferable records does not make their tem-
poral sequence apparent as in transferable documents or instruments.
141. Provisions relating to the indication of time and place, if any, are to be found
in substantive law, which may indicate to what extent and which parties may agree
on it. If the indication of time and place is mandatory under substantive law, that
requirement must be complied with in accordance with article 10, paragraph 1(a),
of the Model Law, mandating that the electronic transferable record should contain
the information “required to be contained in a transferable document or
instrument”.
142. The words “or permits” clarify that article 13 should apply also to cases
when the law permits, but does not require, the indication of time or place with
respect to a transferable document or instrument. In line with the general rule that
the Model Law does not impose any additional information requirement, article 13
does not require the indication of time and place when that information is not
mandatory under applicable law.
143. Methods available to indicate time and place in electronic transferable

records may vary with the system used. Therefore, article 13 is based on a tech-
nology-neutral approach compatible with systems based on registry, token, distrib-
uted ledger or other technology. The reference to the use of a reliable method in
indicating time points to the possibility of using trust services such as trusted time
stamping.
144. The nature of the electronic transferable record may enable automation of
certain steps in the life cycle of the record related to time. For instance, promissory
notes may be presented for payment automatically on the due date.
145. The provisions on time and place of dispatch and receipt of data messages
(article 15 of the UNCITRAL Model Law on Electronic Commerce) and of elec-
tronic communications (article 10 of the Electronic Communications Convention)
are relevant for contract formation and management, but may not be appropriate
with respect to the use of electronic transferable records.
References
A/CN.9/797, paragraph 61; A/CN.9/834, paragraphs 36-46; A/CN.9/863,

paragraphs 23-24, 26; A/CN.9/869, paragraphs 79-82.
Article 14. Place of business
146. The law may attach a number of consequences to the place of business. In
particular, the place of business may be relevant for the cross-border use of
electronic transferable records. Substantive law should indicate how to identify the
relevant place of business, which, in principle, does not need to be different only
because of the use of an electronic or paper medium. The scope of article 14 is
limited to clarifying that the location of an information system, or parts thereof,
is not an indicator of a place of business as such. That clarification may be particu-
larly useful in light of the likelihood that third parties providing services relating
to the management of electronic transferable records will use equipment and tech-
nology located in various jurisdictions, or whose location may change regularly,
such as in the case of use of cloud computing.
147. Article 14, whose text is inspired by article 6, paragraphs 4 and 5, of the
Electronic Communications Convention,46 aims at providing guidance on the
determination of a place of business when electronic means are used by indicating
that certain elements do not per se identify a place of business. Its scope is therefore
different from that of article 13, which relates to the indication of the place in the
electronic transferable record, and not to its determination.
148. Reference to “place of business” should be interpreted as reference to the

various notions related to geographic location (e.g., residence or domicile) that
may be relevant during the life cycle of the electronic transferable record. While

46

the elements listed in article 14 do not, per se, determine the location of a place
of business, those elements may be used together with other elements to determine
that location.
149. Substantive law may allow parties to identify the place of business by
agreement. In that case, article 14 may provide a set of suppletive rules on the
determination of the place of business that could usefully complement parties’
agreements.
References
Article 15. Endorsement
150. Transferable documents or instruments may be transferred by delivery and

by endorsement. Substantive law sets forth the conditions for the circulation of
transferable documents or instruments, which apply to functionally equivalent
electronic transferable records. Article 15 identifies the requirements that need to
be complied with in order to achieve functional equivalence of endorsement in
addition to the requirements for functional equivalence of written form and
signature.
151. While national laws may contain a wide range of formal prescriptions for
endorsement in a paper-based environment, article 15 aims to achieve functional
equivalence of the notion of endorsement regardless of those requirements and in
line with the approach taken for other functional equivalence rules in the Model
Law. Hence, article 15 adds to the functional equivalence rules for writing, signa-
ture and transfer already contained in the Model Law by also providing for specific
forms of endorsement required under substantive law, such as endorsements on
the back of a transferable document or instrument or by affixing an allonge.
152. Inserting in article 15 specific references to certain form requirements, but

not to others, might be interpreted as excluding those other requirements from the
scope of the article, thus ultimately frustrating its purpose. Hence, article 15 does
not refer to any specific type of requirement, but includes all of them.
153. The words “or permits” are included in article 15 to provide for instances
when substantive law allows for, but does not require, endorsement.
154. The words “included in” have been chosen to reflect current practice more
accurately and to encompass instances when the information is logically associated
with or otherwise linked to the electronic transferable record, thus enabling the
use of different models for electronic transferable records management systems in
line with the principle of technological neutrality.
References
A/CN.9/768, paragraphs 46, 102; A/CN.9/797, paragraphs 95-97; A/CN.9/804,

paragraphs 80-81; A/CN.9/828, paragraphs 76-80; A/CN.9/869,
paragraphs 111-114.
Article 16. Amendment
155. Substantive law or contractual agreements may permit the amendment of a

transferable document or instrument and specify who has the authority to amend,
under what circumstances and whether a duty to notify third parties of the amend-
ment exists. Article 16 provides a functional equivalence rule for instances in which
an electronic transferable record may be amended.
156. The amendments referred to in article 16 are of a legal nature. Amendments

of a purely technical nature do not fall under the scope of article 16. (See also
above, para. 101, on the reference to “any change which arises in the normal course
of communication, storage and display” contained in article 10, paragraph 2, of the
Model Law.)
157. Article 16 sets forth an objective standard, as indicated by the use of the
word “identified”, for the identification of amended information in an electronic
environment. The rationale for requesting the identification of the amended infor-
mation lies in the fact that, while amendments may be easily identifiable in a paper-
based environment due to the nature of that medium, that may not be the case in
an electronic environment. Qualifiers to identification, such as “accurately” or
“readily”, do not provide an objective standard while introducing an additional
burden and imposing costs on system operators.
158. Thus, article 16 aims to provide evidence of and trace all amended infor-
mation. The article is in line with the general obligation to preserve the integrity
of the electronic transferable record contained in article 10, paragraph 2, of the
Model Law. It does, however, go beyond that general obligation, as the amended
information should not only be recorded, but also identified as such and therefore
be recognizable.
159. Article 16 requires that a reliable method should be used to identify the
amended information, but does not set out the method to be employed to identify
the amendment or the amended information, as that could impose an additional

burden on the management of the electronic transferable record. The reliability of
the method is to be assessed according to the general reliability standard contained
in article 12.
160. The words “or permits” aim at capturing those instances in which applicable
substantive law allows for amendment of the electronic transferable record, but
does not require it.
References

paragraph 101; A/CN.9/804, paragraph 86; A/CN.9/828, paragraphs 85-90;

instrument with an electronic transferable record
161. If the law recognizes the use of both transferable documents or instruments
and electronic transferable records, the need for a change of medium may arise
during the life cycle of those documents, instruments or records. Enabling change
of medium is critical for the wider acceptance and use of electronic transferable
records, especially when used across borders, given the different levels of accept-
ance of electronic means and readiness for their use in different States and business
communities.
162. While legal texts based on the principle of medium neutrality may
recognize the possibility of change of medium, laws dealing exclusively with trans-
ferable documents or instruments are unlikely to foresee it. Articles 17 and 18 of
the Model Law aim to fill that gap.
163. Articles 17 and 18 have a substantive nature and aim at satisfying two main
goals: enabling change of medium without loss of the information required by
substantive law; and ensuring that the replaced transferable document or instru-
ment will not further circulate so as to prevent the coexistence of two claims to
performance of the same obligation and, more generally, not to affect in any man-
ner the rights and obligations of any party.
164. As a general rule, according to article 10, paragraph 1(a), of the Model Law

an electronic transferable record should contain the information required to be
contained in a transferable document or instrument (see above, paras. 89-93).
However, article 17 does not require that all information contained in a transferable
document or instrument should be contained in the replacing electronic transfer-
able record. Substantive law determines the information necessary to be contained
in the replacing electronic transferable record in order to preserve rights and obli-
gations of all concerned parties.
165. Article 17 omits the reference to substantive legal notions such as “issuer”,
“obligor”, “holder” and “person in control” in order to accommodate the variety of
schemes used with respect to the various transferable documents or instruments,
thus providing the flexibility needed to accommodate business practice.
166. Substantive law, including parties’ agreement, identifies the parties whose
consent is relevant for the change of medium and the parties, if any, which need
to be notified of the change.
167. Paragraph 1 requires that a reliable method should be used for the change
of medium. The reliability of the method is to be assessed according to the general
reliability standard contained in article 12.
168. The word “replace” in paragraph 1 does not refer to the notion of
reissuance, since reissuance and change of medium are distinct concepts and arti-
cle 17 is clearly meant to refer to the latter.
169. The legal consequence for non-compliance with the requirement set forth
in paragraph 2 is the invalidity of the change of medium and, consequently, of the
electronic transferable record.
170. Paragraph 3 sets forth that, when the change of medium has taken place,
the transferable document or instrument ceases to have any effect or validity. This
is necessary to avoid multiple claims for performance. The word “upon” indicates
that there should be no interval between the issuance of the replacement and the
termination of the replaced document or instrument. However, information con-
tained in a transferable document or instrument may have legal value for purposes
unrelated to the functions pursued with transferability. For instance, a bill of lading
may provide evidence of a contract of carriage of goods. The legal status of that
information is to be determined by substantive law. Moreover, article 17 does not
apply in cases where a second original is deliberately issued on a medium different
from that used for the first original.
171. The words “shall be made inoperative and” before the word “ceases” reflect
that the transferable document or instrument cannot be further transferred after
change of medium. They leave sufficient flexibility as to the choice of the method
to render the transferable document or instrument inoperative.
172. If a transferable document or instrument or an electronic transferable record

is invalidated on the incorrect assumption of the validity of the replacing record,
document or instrument, substantive law would apply to the reissuance of the
invalidated document, instrument or record, or to the issuance of the replacing
record, document or instrument.
173. A transferable document or instrument or an electronic transferable record

could fulfil other functions besides transferability, such as providing evidence of a
contract for the carriage of goods and of receipt of the goods, or, with respect to
transferable documents or instruments, providing evidence of the chain of endorse-
ments for an action in recourse. The ability to fulfil those additional functions may
continue after the document, instrument or record has been made inoperative.
174. Paragraph 3 refers to the issuance of the electronic transferable record in

accordance with paragraphs 1 and 2, to clarify that the electronic transferable
record has to be issued in accordance with both paragraphs.
175. Paragraph 4 is intended to clarify as a statement of law that the rights and
obligations of the parties are not affected by the change of medium. In particular,
the replacing record should contain all the information necessary in order not to
affect those rights and obligations, regardless of the nature of that information.
Though restating a general principle already contained in the Model Law, the par-
agraph was retained in view of its declaratory function.
References
A/CN.9/761, paragraphs 72-77; A/CN.9/768, paragraph 101; A/CN.9/797,

paragraphs 53-64; A/CN.9/869, paragraphs 116-120.
Article 18. Replacement of an electronic

transferable record with a
transferable document or instrument
176. Article 18 provides for the replacement of an electronic transferable record

with a transferable document or instrument. A survey of business practice indicates
that such replacement is more frequent than the reverse case due to the fact that
a party whose involvement was not envisaged at the time of the creation of the
electronic transferable record does not wish, or is not in a position, to use electronic
means.
177. Under certain national laws, a paper-based printout of an electronic record

may be considered as equivalent to an electronic record. Under article 18, a print-
out of an electronic transferable record needs to meet the requirements of that
article in order to have effect as a transferable document or instrument replacing
the corresponding electronic transferable record.
178. The content of article 18 mirrors that of article 17 on the replacement of a

transferable document or instrument with an electronic transferable record. There-
fore, the comments in paragraphs 161-175 above also apply, mutatis mutandis, to
article 18.
179. Article 18 does not require that all information contained in an electronic
transferable record should be contained in the replacing transferable document
or instrument. In particular, an electronic transferable record could contain infor-
mation, for example, metadata that cannot be reproduced in a transferable docu-
ment or instrument (see also above, paras. 56-58). Substantive law determines the
information necessary to be contained in the replacing transferable document or
instrument in order to preserve rights and obligations of all concerned parties.
References

paragraphs 121-122.
Chapter IV. Cross-border recognition of
180. Article 19 aims at eliminating obstacles to cross-border recognition of an

electronic transferable record arising exclusively from the fact that it was issued or
used abroad. It does not affect private international law rules.
181. The need for an international regime to facilitate the cross-border use of
electronic transferable records was already recognized at the outset of the work
and reiterated throughout the deliberations on the Model Law. That need was also
emphasized by the Commission at its forty-fifth session (A/67/17, para. 83).
182. However, different views were expressed on how to achieve that goal. On
the one hand, there was the desire not to displace existing private international law
rules and to avoid the creation of a dual regime applying a special set of conflict
of laws provisions for electronic transferable records. On the other hand, there was
awareness of the importance of dealing adequately with aspects relating to the
international use of the Model Law for its success and expression of the desire to
promote its cross-border application regardless of the number of enactments.
Paragraph 1
183. Paragraph 1 aims at eliminating obstacles to cross-border recognition of an

electronic transferable record arising exclusively from the place of origin or use of
the electronic transferable record. In other words, paragraph 1 aims to avoid that
the place of origin or use of the electronic transferable record could be considered
in itself the reason to deny legal validity or effect to an electronic transferable
record. A provision similar in scope may be found in article 12, paragraph 1, of
the UNCITRAL Model Law on Electronic Signatures.
184. The words “issued or used” aim at covering all events occurring during
the life cycle of an electronic transferable record. In particular, they include
endorsement and amendment of the electronic transferable record. In determining
58
the location of the place of business, article 14 of the Model Law may also be
relevant.
185. Paragraph 1 does not affect substantive law, including private international
law. The principle of non-discrimination of electronic transferable records may not
in itself constitute grounds for recognizing the legal effect, validity or enforceability
of foreign electronic transferable records. Thus, for instance, paragraph 1 could not
per se lead to the recognition of an electronic transferable record issued in a juris-
diction that does not recognize the legal validity of electronic transferable records.
However, paragraph 1 also does not prevent recognition in a jurisdiction enacting
the Model Law of an electronic transferable record issued or used in a jurisdiction
not allowing the issuance and use of electronic transferable records and that oth-
erwise complies with the requirements of applicable substantive law.
186. The word “abroad” is used to refer to a jurisdiction other than the enacting
one, including a different territorial unit in States comprising more than one.
Paragraph 2
187. Paragraph 2 reflects the understanding that the Model Law should not dis-
place existing private international law applicable to transferable documents or
instruments, which is considered substantive law for the purposes of the Model
Law (see above, para. 22). The introduction of a special set of private international
law provisions for electronic transferable records would lead to a dual private inter-
national law regime, which is not desirable.
188. Since paragraph 1 refers only to non-discrimination, while paragraph 2

relates to private international law, the two paragraphs operate on different levels
and do not conflict with each other.
References
A/67/17, paragraph 83; A/CN.9/768, paragraph 111; A/CN.9/797, paragraph 108;

III. Other relevant issues
A. Notion of “original”
189. Unlike other UNCITRAL texts on electronic commerce, the Model Law
does not use the term “original” in the provisions that contain the requirements
for establishing functional equivalence to the paper-based notion of “original”. In
that respect, it should be noted that article 8 of the UNCITRAL Model Law on
Electronic Commerce refers to a static notion of “original” while electronic trans-
ferable records are meant, by their very nature, to circulate. More precisely, article 8
of the UNCITRAL Model Law on Electronic Commerce refers to concepts such
as “first generated in its final form”, and is therefore particularly suitable for docu-
ments such as contracts whose modification is possible but neither necessary nor
frequent. The notion of “original” in the Model Law, on the other hand, takes into
account the fact that, after issuance, the electronic transferable record is necessarily
subject to modifications and is not in its “final form” until presentation. Therefore,
the notion of “original” in the context of electronic transferable records is different
from that adopted in other UNCITRAL texts.
190. With regard to the dynamic notion of “original” in the context of electronic
transferable records, article 10, paragraph 1(b)(iii), of the Model Law refers to the
integrity of the electronic transferable record as one of the requirements that needs
to be fulfilled in order to achieve functional equivalence with a transferable docu-
ment or instrument. Hence, while the notion of “original” of transferable docu-
ments or instruments is particularly relevant for preventing multiplicity of claims,
the Model Law achieves that goal with the use of the notions of “singularity” and
“control” that allow identifying a specific electronic record both as the electronic
transferable record that entitles the person in control to claim performance and as
the electronic transferable record that is the object of control (see above,
paras. 83-84).
References

paragraphs 21-40.
61
B. Issuance of multiple originals

191. The possibility of issuing multiple originals of a transferable document or
instrument exists in several fields of trade. The Model Law does not affect the
continuation of that practice with respect to the use of electronic transferable
records in accordance with article 10 of the Model Law when that practice is
permitted under applicable law. Similarly, the Model Law does not prevent the
possibility of issuing multiple originals on different media(e.g., one on paper and
one in electronic form), where that is permitted under applicable law.
192. As noted (see above, para. 189), the Model Law does not contain a functional
equivalent of the paper-based notion of “original”. Instead, the functions fulfilled by
the original of a transferable document or instrument with respect to requesting
performance are satisfied in an electronic environment by the notions of “singularity”
and “control” (see above, paras. 83-84). Hence, the transposition of the practice
of issuing multiple original transferable documents or instruments in an electronic
environment requires the issuance of multiple electronic transferable records relating
to the performance of the same obligation.
193. However, caution should be exercised when issuing multiple electronic

transferable records. In fact, doing so may lead to multiple claims for the same
performance based on the presentation of each original. Moreover, in an electronic
environment, the same functions may be pursued as with the issuance of multiple
original transferable documents or instruments by selectively attributing control
over one electronic transferable record to multiple entities on the basis of the legal
rights attributed to each entity (e.g., title to property of goods or security interests).
In practice, an electronic transferable records management system could, for
instance, provide information on multiple claims having different objects relating
to the same electronic transferable record.
194. If substantive law contains an obligation to indicate whether multiple originals

have been issued, the electronic transferable record must comply with it in accord-
ance with the information requirements contained in article 10, paragraph 1(a), of
the Model Law.
195. Similarly, the Model Law does not specify whether one or all originals must
be presented to request the performance of the obligation contained in the electronic
transferable record, as this matter is determined by applicable law or, where possible,
by contractual agreement.
References
A/CN.9/768, paragraphs 71-74; A/CN.9/797, paragraphs 47, 68-69;

paragraphs 95-99.
C. Storage and archiving
196. The Model Law does not contain specific provisions on storage and archiv-
ing. All applicable retention requirements found in other law, including the law on
privacy and data retention, should be complied with. The notions of storage and
archiving may apply to the information contained in the electronic transferable
record, but not to the electronic transferable record as such.
Reference
A/CN.9/834, paras. 74-75.
D. Third-party service providers
197. Depending on the model chosen, electronic transferable records manage-

ment systems may require the use of services provided by third parties. The Model
Law is technology neutral and therefore compatible with all models. Reference in
the Model Law to electronic transferable records management systems does not
imply the existence of a system administrator or other form of centralized
control.
198. UNCITRAL texts on electronic commerce have sometimes dealt with the
conduct of third-party service providers. In particular, articles 9 and 10 of the
UNCITRAL Model Law on Electronic Signatures provide guidance on the assess-
ment of the conduct of a third-party service provider and of the trustworthiness
of its services.47
199. However, the Model Law is an enabling instrument and does not deal with
regulatory matters, which should be addressed in other legislation. Moreover,
expected developments in technology and business practice recommend a flexible
approach when assessing the conduct of third-party service providers. Hence, the
Model Law permits freedom of choice of third-party service providers, as well as
of the type of services requested and of their technology.
200. In that respect, it should be noted that the general reliability standard set
forth in article 12 of the Model Law, and specific standards such as the criterion
to assess integrity contained in article 10, paragraph 2, of the Model Law provide
parameters to assess the reliability of an electronic transferable record and of its
UNCITRAL Model Law on Electronic Signatures, Guide to Enactment, paras. 142-147.

47
management system. Designers of those management systems need to comply with

those standards in order to establish commercially viable enterprises.
Reference

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UNCITRAL UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW

UNCITRAL Model Law on

UNCITRAL Model Law on

UNITED NATIONS PUBLICATION

© United Nations, July 2018. All rights reserved, worldwide.

The designations employed and the presentation of material in this publication do

This publication has not been formally edited.

Publishing production: English, Publishing and Library Section, United Nations

Resolution adopted by the General Assembly on 7 December 2017 . . . . . . . . . . . 3

Decision of the United Nations Commission on International Trade Law

UNCITRAL Model Law on Electronic Transferable Records . . . . . . . . . . . . . . . . 7

Chapter I. General provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Chapter II. Provisions on functional equivalence . . . . . . . . . . . . . . . . . . . . . . . . . 9

Chapter III. Use of electronic transferable records . . . . . . . . . . . . . . . . . . . . . . . . 10

Chapter IV.­­ Cross-border recognition of electronic transferable records . . . . 13

Explanatory Note to the UNCITRAL Model Law on Electronic

Chapter I. General provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Chapter III. Use of electronic transferable records . . . . . . . . . . . . . . . . . . . . . . . . 46

Chapter IV. Cross-border recognition of electronic transferable records . . . . 58

III. Other relevant issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

72/114. Model Law on Electronic Transferable

Recalling that, at its forty-fourth session, in 2011, the Commission mandated

The United Nations Commission on

Having considered at its fiftieth session, in 2017, a draft model law on

3. Requests the Secretary-General to publish the UNCITRAL Model Law

4. Recommends that all States give favourable consideration to the

A/CN.9/921 and addenda.

Chapter I. General provisions

1. This Law applies to electronic transferable records.

For the purposes of this Law:

“Transferable document or instrument” means a document or instrument issued on

Article 4. Party autonomy and privity of contract

Article 5. Information requirements

Article 6. Additional information in

Nothing in this Law precludes the inclusion of information in an electronic trans-

may derogate from or vary by agreement.

Article 7. Legal recognition of an electronic transferable

1. An electronic transferable record shall not be denied legal effect, validity or

2. Nothing in this Law requires a person to use an electronic transferable record

3. The consent of a person to use an electronic transferable record may be

Chapter II. Provisions on

Article 10. Transferable documents or instruments

1. Where the law requires a transferable document or instrument, that require-

(i) To identify that electronic record as the electronic transferable

2. The criterion for assessing integrity shall be whether information contained in

1. Where the law requires or permits the possession of a transferable document

2. Where the law requires or permits transfer of possession of a transferable doc-

Chapter III. Use of electronic

Article 12. General reliability standard

(i) Any operational rules relevant to the assessment of reliability;

Article 13. Indication of time and place

Article 14. Place of business

1. A location is not a place of business merely because that is:

Where the law requires or permits the amendment of a transferable document or

Article 17. Replacement of a transferable document or

1. An electronic transferable record may replace a transferable document or

2. For the change of medium to take effect, a statement indicating a change of

3. Upon issuance of the electronic transferable record in accordance with para-

4. A change of medium in accordance with paragraphs 1 and 2 shall not affect

Article 18. Replacement of an electronic transferable record

Chapter IV. Cross-border recognition of electronic transferable records . . . . 13

(i) To identify that electronic record as the electronic transferable

Chapter IV. Cross-border recognition of