eURC VERSION 1.0 ARTICLE e12

Chào các bạn.

Hôm nay chung ta tiếp tục nghiên cứu eURC với Điều e12 – điều áp chót của eURC. Điều e12 quy định về các miễn trách bổ sung (ngoài các miễn trách theo URC 522) đối với việc xuất trình chứng từ điện tử theo eURC.
Điều e12 quy định như sau:

a. Bằng cách xác thực tính chân thực bề ngoài của chứng từ điện tử, ngân hàng được miễn trách nhiệm đối với việc nhận diện người gửi, nguồn thông tin, hoặc tính trọn vẹn và không thay đổi của chứng từ điện tử được nhận bằng cách sử dụng hệ thống xử lý dữ liệu để nhận, xác thực, và nhận biết các chứng từ điện tử.

b. Ngân hàng được miễn trách đối với các hậu quả phát sinh do sự không sẵn sàng của hệ thống xử lý dữ liệu không phải là hệ thống xử lý dữ liệu của riêng ngân hàng đó.

Các bạn đã đọc kỹ eUCP sẽ thấy Điều e12 eURC giống ý chang Điều e13 eUCP.

Các bạn đọc thêm phần COMMENTARY để nắm thêm các trường hợp ngân hàng miễn trách theo URC 522.

Kind regards,

Mr. Old Man
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ARTICLE e12

ADDITIONAL DISCLAIMER OF LIABILITY FOR PRESENTATION OF ELECTRONIC RECORDS UNDER eURC

a. By satisfying itself as to the apparent authenticity of an electronic record, a bank assumes no liability for the identity of the sender, source of the information, or its complete and unaltered character other than that which is apparent in the electronic record received by the use of a data processing system for the receipt, authentication, and identification of electronic records.

b. A bank assumes no liability or responsibility for the consequences arising out of the unavailability of a data processing system other than its own.

COMMENTARY
A disclaimer is a device by which risk is shifted from one entity to another. Where the disclaimer reflects the reasonable expectations of an industry, it is typically enforceable under applicable local law, even where it is stated in rules of practice as opposed to a bilateral contract. Due to the limited role of banks in collection practice, disclaimers have been used to limit their liability from the actions or omissions of others.

Disclaimers have sometimes been asserted to excuse the responsibility of a bank for its own negligence. While modern commercial law allows parties to allocate the risk of negligence up to but not including so-called gross negligence or wilful disregard for the consequences of one’s action or omission, most systems of local law require more specific and detailed provisions than those contained in URC 522 to achieve this result. The liabilities disclaimed in the eURC and URC 522 are the result of external systemic or third party actions, inactions, or risk.

eURC DISCLAIMER
eURC article e12 disclaims banks’ liability for any divergence from the realities represented in authenticated electronic records. Its effect is cumulative with those of URC 522 article 11 (Disclaimer for Acts of an Instructed Party), article 12 (Disclaimer on Documents Received), article 13 (Disclaimer on Effectiveness of Documents) and article 14 (Disclaimer on Delays, Loss in Transit and Translation).

URC 522 DISCLAIMERS
URC 522 contains several disclaimers that are relevant to an eURC collection instruction. eURC article e12 by its title indicates that its disclaimer is additional to those contained in URC 522.

URC 522 article 11 (Disclaimer For Acts of an Instructed Party) URC 522 article 11 disclaims the responsibility of instructing banks for the failure of other banks to carry out the principal’s instructions, even where the other bank is selected at the initiative of the instructing bank. It also provides that the instructing party is bound by and obligated to indemnify instructed parties against the consequences of the application of foreign laws and usages. Under the eURC, this provision would apply not only to collection law and commercial law in general, but also to the law of electronic commerce and the impact of local law on the eURC. For example, were the provisions of the eURC regarding the acceptability of a document as a ‘writing’ or of an authentication as a ‘signature’ not enforceable under local law, this risk would be borne by the principal and not the bank which is entitled to be indemnified by the principal for any damages as a result of the application of foreign laws and usages. The bank would be expected to assume the risk of the application of its own laws and usages, which would also include the law (or lack of it) of electronic commerce.

URC 522 article 12 (Disclaimer on Documents Received) URC 522 article 12 indicates that banks must carefully check that documents received are in line with those stated in the collection instruction and, if not, inform the sending entity without delay. If a remitting bank chooses not to list the documents, it will not be in a position to dispute with a collecting bank as to what was or was not enclosed with the collection instruction. Subject to URC 522 sub-articles 5 (c) (Presentation), 12 (a) and 12 (b) (Disclaimer on Documents Received), banks will present documents as received without further examination.

URC 522 article 13 (Disclaimer on Effectiveness of Documents) URC 522 article 13 disclaims banks’ liability for documents presented, the representations they contain, what they represent, and the actions or omissions of persons who present or issue them. This article disclaims any liability or responsibility for the documents presented, their legality or legal effect, the representations contained in them, or the persons who made them. Under eURC sub-article e4 (a) (iii) (Definitions), the term ‘documents’ would apply to an electronic record, making this disclaimer applicable to both paper documents and electronic records under the eURC.

URC 522 article 14 (Disclaimer on Delays, Loss in Transit and Translation) URC 522 article 14 disclaims liability and responsibility for problems in forwarding data, including problems with telecommunication such as delay, mutilation, or error. This disclaimer disclaims any liability for the actions, failures, or omissions of third parties or their systems of transmission of messages. It would not excuse liability for consequences arising from the bank’s own systems, whether maintained by the bank directly or through the agency of a third party.

NEED FOR eURC ARTICLE E12
Given the system of disclaimers and the statement of independence in URC 522 article 10 (Documents vs. Goods / Services / Performances), it could be queried why additional protection is required in the eURC. Strictly speaking, the provisions of URC 522, properly interpreted, would be sufficient to establish the independent character of an eURC collection instruction and the role of the banks with regard to it.
Nevertheless, the eURC requires authentication of electronic records that is greater in degree, and arguably different in character, from a paper document, for example in:

• eURC sub-article e7 (c) (Presentation) (implying that a bank will authenticate an electronic record that is sent to it) and,

• eURC sub-article e4 (b) (iii) (Definition of “electronic record”) (indicating that an electronic record must be capable of being authenticated as to the apparent identity of the sender, the apparent source of the data contained in it, and its integrity). Since this level of authentication is already greater than that undertaken with paper documents, could be increased even more by requirements for more security in the eURC collection instruction, and could be increased further in the future by technological developments, it was thought important to emphasise the limited role of authentication in the eURC process.

DATA PROCESSING SYSTEM
eURC article e12 refers to the use of a data processing system for the receipt, authentication, and identification of electronic records. In accordance with sub-article e4 (b) (ii), this means ‘a computerised or an electronic or any other automated means used to process and manipulate data, initiate an action or respond to data messages or performances in whole or in part.’ Any bank that engages in an eURC transaction is responsible for maintaining a data processing system. This responsibility is a fundamental precondition for using the eURC. A bank cannot excuse itself from responsibility for the failure to authenticate electronic records due to errors or inadequacies in its systems where those systems are not of the standard required to process such electronic records. This formulation also imposes on banks that engage in processing electronic collections the burden of upgrading their systems to keep them current.

eURC article e12 does not require a level of authentication that is extraordinary even if it were technically feasible. While some banks may choose to develop and market such systems, such a feature is a value-added aspect of their service and not a basis for the standard by which authentication is to be measured. The standard of eURC article e12 is only designed to assure that the system used is not outmoded.

The liabilities disclaimed in the eURC and URC 522 are the result of external systemic or third party actions, inactions, or risk. Reflecting the content of URBPO 750 article 14 (Unavailability of a Transaction Matching Application), eURC sub-article e12 (b) indicates that a bank does take on liability and responsibility for the unavailability of its own data processing system.