legislation. Such an approach may be effective at national level but does not promote
cross-border use of electronic transferable records and discourage new business
processes.
The MLETR covers transferable instruments such as bills of exchange and
promissory notes, and documents of title such as bills of lading and warehouse
receipts. The MLETR builds on the principles of non-discrimination against the use
of electronic means, “functional equivalence” and “technology neutrality”. Based on
the functional equivalence approach the MLETR does not affect substantive law and
party autonomy as applicable to the equivalent document or instrument. Based on
the principle of technology neutrality, the MLETR is compatible with registry-,
token- and blockchain based systems. According to the MLETR, an electronic
transferable record
59 is functionally equivalent to a transferable document or instrument if that record contains the information required to be contained in a transferable
document or instrument, and a reliable method is used to: (a) identify that electronic
record as the electronic transferable record; (b) render that electronic record capable
of being subject to control from its creation until it ceases to have any effect or
validity; and (c) retain the integrity of that electronic record.
60 Control is a fundamental notion of the MLETR since it represents the functional equivalent of possession of a transferable document or instrument. In particular, the possession
requirement is met with respect to an electronic transferable record if a reliable
method
61 is used to: (a) establish exclusive control of that electronic transferable
record by a person; and (b) identify that person as the person in control.
62 Moreover,
the MLETR enables inclusion of information in an electronic transferable record that
may not be included in a paper-based transferable document or instrument because
of its nature. The MLETR also provides guidance on assessing the reliability of the
method used to manage an electronic transferable record and on change of medium
(electronic to paper and the reverse), among other things.
63 In addition, the MLETR
aims to facilitate the cross-border use of electronic transferable records by
supporting the principle of non-discrimination against the foreign origin or use
abroad of an electronic transferable record.
64 Finally, the MLETR does not affect
in any manner the law applicable to transferable documents or instruments, which is
referred to as “substantive law” and includes rules on private international law.
65
59 The term “electronic transferable record” is used in this chapter as an electronic equivalent of a
transferable instrument (negotiable or non-negotiable) or a document of title.
60 Article 10.
61 Article 12.
62 Article 11.
63 Articles 17 and 18.
64 Article 19.
65 The summary of the MLETR presented in this paragraph is from UNCITRAL’s website. See
http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/2017model.html, accessed
on 17 April 2019.
Maritime Rules for Rail Carriage: China’s Initiative to. . .
55
cross-border use of electronic transferable records and discourage new business
processes.
The MLETR covers transferable instruments such as bills of exchange and
promissory notes, and documents of title such as bills of lading and warehouse
receipts. The MLETR builds on the principles of non-discrimination against the use
of electronic means, “functional equivalence” and “technology neutrality”. Based on
the functional equivalence approach the MLETR does not affect substantive law and
party autonomy as applicable to the equivalent document or instrument. Based on
the principle of technology neutrality, the MLETR is compatible with registry-,
token- and blockchain based systems. According to the MLETR, an electronic
transferable record
59 is functionally equivalent to a transferable document or instrument if that record contains the information required to be contained in a transferable
document or instrument, and a reliable method is used to: (a) identify that electronic
record as the electronic transferable record; (b) render that electronic record capable
of being subject to control from its creation until it ceases to have any effect or
validity; and (c) retain the integrity of that electronic record.
60 Control is a fundamental notion of the MLETR since it represents the functional equivalent of possession of a transferable document or instrument. In particular, the possession
requirement is met with respect to an electronic transferable record if a reliable
method
61 is used to: (a) establish exclusive control of that electronic transferable
record by a person; and (b) identify that person as the person in control.
62 Moreover,
the MLETR enables inclusion of information in an electronic transferable record that
may not be included in a paper-based transferable document or instrument because
of its nature. The MLETR also provides guidance on assessing the reliability of the
method used to manage an electronic transferable record and on change of medium
(electronic to paper and the reverse), among other things.
63 In addition, the MLETR
aims to facilitate the cross-border use of electronic transferable records by
supporting the principle of non-discrimination against the foreign origin or use
abroad of an electronic transferable record.
64 Finally, the MLETR does not affect
in any manner the law applicable to transferable documents or instruments, which is
referred to as “substantive law” and includes rules on private international law.
65
59 The term “electronic transferable record” is used in this chapter as an electronic equivalent of a
transferable instrument (negotiable or non-negotiable) or a document of title.
60 Article 10.
61 Article 12.
62 Article 11.
63 Articles 17 and 18.
64 Article 19.
65 The summary of the MLETR presented in this paragraph is from UNCITRAL’s website. See
http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/2017model.html, accessed
on 17 April 2019.
Maritime Rules for Rail Carriage: China’s Initiative to. . .
55