eURC VERSION 1.0 ARTICLE e4

Chào các bạn,

Hôm nay chúng ta tiếp tục eURCP với Điều e4 giải thích các thuật ngữ được sử dụng trong eURC.

Tương tự Điều e3 eUCP Version 2.0, Điều e4 gồm những định nghĩa nhưng phần COMMENTAY dài tới 18 trang không chắc các bạn có đủ thời gian cũng như sự kiên nhẫn để đọc hết một lần. Bạn nào ngán quá thì chỉ cần cố gắng đọc hết phần quy định (dài không quá 1 trang), còn bạn nào có thừa kiên nhẫn thì có thể đọc hết.

Điều e4 giải thích các thuật ngữ và cụm từ được sử dụng trong eURC 522. Một số cũng đã xuất hiện trong URC 522, trong khi một số khác chỉ mới xuất hiện trong eURC.

NHỮNG THUẬT NGỮ TRONG URC 522
Điều e4 gồm 2 phần tách biệt. Phần thứ nhất là Điều e4(a), có tham chiếu các thuật ngữ xuất hiện trong URC 522, nhưng có nghĩa khác khi áp dụng đối với chứng từ điện tử xuất trình theo một chỉ thị nhờ thu tuân thủ eURC. Những thuật ngữ này là “advices”, “collection instruction”, “document”, “place for presentation”, “sign” và “superimposed”.

Do tính độc lập giữa URC 522 và eURC, những thuật ngữ của URC 522 cần được “định nghĩa lại” theo eURC để có thể áp dụng.

NHỮNG THUẬT NGỮ TRONG eURC
Phần thứ hai là Điều e4(b) định nghĩa các thuật ngữ chỉ được sử dụng trong eURC. Những thuật ngữ này là “data corruption”, “data processing system”, “electronic record”, “electronic signanture”, “format”, “paper document”, “presenter”, “rexceived” và “re-present”.

Mr. Old Man tạm dịch Điều e4 như sau:

CÁC ĐỊNH NGHĨA

a. Khi các thuật ngữ sau đây được sử dụng trong URC, vì mục đích áp dụng URC đối với một chứng từ điện tử được xuất trình theo một chỉ thị nhờ thu tuân thủ eURC, thuật ngữ:

(i) “advices” (các thông báo) bao gồm các chứng từ điện tử có nguồn gốc từ hệ thống xử lý dữ liệu;

(ii) “collection instruction” (chỉ thị nhờ thu) bao gồm chỉ thị có nguồn gốc từ hệ thống xử lý dữ liệu;

(iii) “document” (chứng từ) bao gồm chứng từ điện tử;

(iv) “place for presentation” (nơi xuất trình) một chứng từ điện tử nghĩa là địa chỉ điện tử của hệ thống xử lý dữ liệu;

(v) “sign” (ký) và các từ tương tự bao gồm một chữ ký điện tử;

(vi) “superimposed” (phần ghi thêm) có nghĩa là nội dung dữ liệu thể hiện thông tin bổ sung trong một chứng từ điện tử

b. Các thuật ngữ sử dụng trong eURC có ý nghĩa như sau:

(i) “data corruption” (lỗi dữ liệu) là bất kỳ sự mất dữ liệu hoặc dữ liệu không rõ ràng dẫn đến tình trạng không thể đọc được chứng từ điện tử xuất trình;

(ii) “data processing system” (hệ thống xử lý dữ liệu) là các phương tiện tự động hóa, điện tử hoặc được vi tính hóa được sử dụng để xử lý dữ liệu, tạo dữ liệu hoặc trả lời toàn bộ hoặc một phần các bức điện hoặc việc thực hiện dữ liệu;

(iii) “electronic record” (chứng từ điện tử) là các dữ liệu được tạo ra, phát sinh, gửi đi, truyền thông, nhận hoặc lưu lại bằng các phương tiện điện từ bao gồm, tùy từng trường hợp, tất cả thông tin có liên quan một cách logic hoặc kết nối với nhau để trở thành một phần của chứng từ, cho dù phát sinh cùng lúc hoặc không, đó là:
a. có khả năng xác thực tính chân thực của người gửi và nguồn dữ liệu chứa trong chứng từ và chứng từ đã hoàn chỉnh và không thay đổi hay chưa, và
b. có thể xem được để bảo đảm nó thể hiện loại và/hoặc mô tả chứng từ điện tử nêu trong chỉ thị nhờ thu tuân thủ eURC.

(iv) “electronic signature” (chữ ký điện tử) là quá trình dữ liệu gắn hoặc có liên hệ với một chứng từ điện tử và được thực hiện hoặc phê duyệt bởi một người để nhận diện người đó và thể hiện sự xác thực chứng từ điện tử của người đó;

(v) “format” (định dạng) là tổ chức dữ liệu của chứng từ điện tử

(vi) “paper document” (chứng từ bằng giấy)

(vii) “presenter” (người xuất trình chứng từ) là có khả năng xác thay mặt nhà xuất khẩu)

(viii) “received” (đã nhận được) là khi một chứng từ điện tử nhập vào hệ thống dữ liệu, tại nơi xuất trình đã thỏa thuận, bằng một định dạng có thể được hệ thống đó chấp nhận. Bất kỳ xác nhận đã nhận được phát sinh bởi hệ thống đó không có nghĩa rằng chứng từ điện tử đã được xác thực và/hoặc được xem theo chỉ thị nhờ thu tuân thủ eURC;

(ix) “re-present” (xuất trình lại) nghĩa là thay thế một chứng từ điện tử đã xuất trình trước đó.

Ôi quá dài! Mr. Old Man đã cố gắng hoàn thành tới đây trong khi lưng vẫn còn đau do té xe đạp trên đường đi Huế.

Các bạn đọc tới đây cũng được nhưng khuyến khích đọc thêm phần COMMENTARY để hiểu thêm.

Thân ái.

Mr. Old Man
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ARTICLE e4

DEFINITIONS

a. Where the following terms are used in the URC, for the purpose of applying the URC to an electronic record presented under an eURC collection instruction, the term:

i. “advices” includes electronic records originating from a data processing system;

ii. “collection instruction” shall include an instruction originating from a data processing system;

iii. “document” shall include an electronic record;

iv. “place for presentation” of an electronic record means an electronic address of a data processing system;

v. “sign” and the like shall include an electronic signature;

vi. “superimposed” means data content whose supplementary character is apparent in an electronic record.

b. The following terms used in the eURC shall have the following meaning:

i. “data corruption” means any distortion or loss of data that renders the electronic record, as it was presented, unreadable in whole or in part;

ii. “data processing system” 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;

iii. “electronic record” means data created, generated, sent, 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, that is:
a. capable of being authenticated as to the apparent identity of a sender and the apparent source of the data contained in it, and as to whether it has remained complete and unaltered, and
b. capable of being viewed to ensure that it represents the type and/or description of the electronic record listed on the eURC collection instruction;

iv. “electronic signature” means a data process attached to or logically associated with an electronic record and executed or adopted by a person in order to identify that person and to indicate that person’s authentication of the electronic record;

v. “format” means the data organisation in which the electronic record is expressed or to which it refers;

vi. “paper document” means a document in a paper form;

vii. “presenter” means the principal or a party that makes a presentation on behalf of the principal;

viii. “received” means when an electronic record enters a data processing system, at the agreed place for presentation, in a format capable of being accepted by that system. Any acknowledgement of receipt generated by that system is not to be construed that the electronic record has been authenticated and/or viewed under the eURC collection instruction;

ix. “re-present” means to substitute or replace an electronic record already presented.

COMMENTARY
This article comprises of a number of terms used in the eURC. Some also appear in URC 522, whilst others appear solely in the eURC.

URC 522 TERMS
Article e4 is comprised of two distinct parts. In the first section, sub-article e4 (a), reference is made to terms that also appear in URC 522, but have a different meaning when applied to an electronic record presented under an eURC collection instruction. These include ‘advices’, ‘collection instruction’, ‘document’, ‘place for presentation’, ‘sign’, and ‘superimposed’.
Owing to the interdependence between URC 522 and eURC, it was clear that these URC 522 terms required ‘re-definition’ under the eURC in order to remain applicable.
eURC TERMS
The second section, sub-article e4 (b), defines terms used solely in the eURC. These include ‘data corruption’, ‘data processing system’, ‘electronic record’, ‘electronic signature’, ‘format’, ‘paper document’, ‘presenter’, ‘received’ and ‘re-present’.

RELATIONSHIP TO, AND IMPACT OF, LOCAL ELECTRONIC COMMERCE LAW
The statements in the previous ‘ICC Guide to the eUCP’ (ICC Publication No. 639), although mentioned in relation to the eUCP, are equally applicable to the eURC, and are repeated below:
Not only are many of the terms that are defined in eUCP article e3 used in electronic commerce, they have also come to be used and even defined in the law relating to it. With respect to the law, as well as electronic commerce generally, there has been no intention to develop new doctrine or concepts. Any innovations in the definitions in the eUCP derive from the unique nature of the documentary credit. While every attempt has been made to align the definitions in these rules with those used in local law, many of the legal definitions now extant differ among themselves in formulation if not meaning. As a result, the eUCP definitions are modelled on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce, which is the most widely imitated in electronic commerce legislation.
Therefore, in working with the eUCP, it is necessary to consider each applicable legal system with respect to the eUCP definitions to determine:
• whether local law defers to a system of private rules such as the eUCP where the undertaking is subject to them, and,
• whether this deference extends to the internal definitions used in the eUCP even if they differ from those used in the definitional section of the law, and,
• whether there is any substantive conflict between the eUCP definitions and those contained in the local law. In most cases, the law of electronic commerce reflects modern commercial law in permitting private rules to utilise particular definitions internally.
Where the same term has differing meanings or where the same concept is given two different names—one in the law and a different one in a private rule—there is more likely to be confusion than conflict in applying local law. The confusion would result where local law embraces one definition but defers to the eUCP and permits use of a different definition internally in applying that practice.
For example, the term ‘document’ may have a different meaning under local electronic commerce law than in the eUCP. When applying local electronic commerce law, its own definition must be used, whereas in interpreting and applying the eUCP, the eUCP definition must be used. The only area identified to date as one for possible concern regarding conflict between the eUCP and local electronic commerce law relates to the degree of authenticity required for electronic records and the meaning to be attached to a requirement for an electronic signature.
Where there is a mandatory requirement under local electronic commerce law for a higher degree of authenticity than would be required under the eUCP, local electronic commerce law may impose additional requirements on an electronic presentation.
As to the liability for variations of local law, UCP 600 sub-article 37 (d) (Disclaimer for Acts of an Instructed Party) provides that the applicant would be required to indemnify the bank against any risks arising from such a local law other than the law to which the bank itself is subject where the credit is not made subject to that law.

eURP SUB-ARTICLE E4 (A) (I):
“ADVICES” eURC Definition
The term ‘advices includes electronic records originating from a data processing system.

General
eURC sub-article e4 (a) (i) appends to the meaning of ‘advices’ in URC 522 article 26 (Advices).

eURC SUB-ARTICLE E4 (A) (II): ‘COLLECTION INSTRUCTION’
eURC Definition
The term ‘collection instruction’ shall include an instruction originating from a data processing system.
General
eURC sub-article e4 (a) (ii) appends to the meaning of ‘collection instruction’ in URC 522 article 4 (Collection Instruction).

eURC SUB-ARTICLE E4 (A) (III): “DOCUMENT”
eURC Definition
The term ‘document’ shall include an electronic record.

General
eURC sub-article e4 (a) (iii) adds the term ‘electronic record’ to the meaning of ‘document’ as it is used in URC 522 with respect to an eURC collection instruction.

Meaning of ‘document’ in URC 522
The term ‘document’ or a variation is used extensively in URC 522. The term ‘documents’ is defined in URC 522 sub-article 2 (b) and means ‘financial documents and/or commercial documents’ as further defined in URC 522 sub-articles 2 (b) (i) and (ii).

Paper
As used throughout URC 522, the term ‘document’ suggests format in a paper medium. Unless specifically allowed under the conditions of an eURC collection instruction, it is expected that all presentations under such a collection instruction be in a paper format.

Electronic Presentations
Many of the uses of the term ‘document’ in URC 522 are readily applicable to an electronic presentation because they focus on the data presented and not on the medium of presentation. As a result, extension of the term ‘document’ to an electronic record is relatively simple. The eURC sub-article e4 (a) (iii) approach does not, however, alter the fact under URC 522 that a paper document is required unless the collection instruction states otherwise where it is not supplemented by the eURC.

‘Document’ in electronic commerce law.
It is important that the impact of applicable local electronic commerce law always be taken into account. However, based upon the fact that the eURC definitions are modelled on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce, it is hoped that there will be no particular conflict with the eURC definition.

eURC SUB-ARTICLE E4 (A) (IV): “PLACE FOR PRESENTATION”
eURC Definition
The term ‘place for presentation’ of an electronic record means an electronic address of a data processing system.
General
eURC sub-article e4 (a) (iv) extends the phrase ‘place for presentation’ in URC 522 to include an electronic address when referring to the place of presentation of an electronic record under an eURC collection instruction.
Meaning of ‘place for presentation’ in URC 522
URC 522 sub-article 4 (b) (iii) uses the phrase ‘domicile at which presentation is to be made’. Whilst this is not formally defined in URC 522, it implies the domicile or address of the drawee. URC 522 sub-article 4 (b) (iv) addresses the presenting bank. In URC 522, the phrase refers to an address at a physical location. URC 522 continues to apply. In respect of the place for presentation, the following sub-articles are applicable: URC 522 4 (b) (iv) (Collection Instruction), 4 (c) (i) (Collection Instruction), 5 (d) (Presentation), 5 (e) (Presentation), and 5 (f) (Presentation).

Transition to eURC Collection Instructions
Where the collection instruction requires or permits presentation of electronic records, their place of presentation will typically be to an electronic address and not a physical one. However, the collection instruction may require that the electronic record be contained on portable storage medium, in which case the electronic record may be presented to a physical address. The requirement in the eURC is for the place for presentation to have been established by way of a prior agreement. The collection instruction, as part of the presentation, should then be made to that agreed place. A collection instruction should not be sent without such an agreement being in place and should not be sent to any other place than that which has been agreed.
Electronic Address Although there is no specific definition within the eURC, the term ‘electronic address’ signifies the precise electronic location or proprietary system to which an electronic record can be sent. It could include, inter alia, a URL, an email address, or an address on a dedicated system.

eURC SUB-ARTICLE E4 (A) (V): “SIGN”
eURC Definition
The term ‘sign’ and the like shall include an electronic signature.
General
eURC sub-article e4 (a) (v) adds ‘electronic signature’ to the meaning of the term ‘sign’ or its variations when used in URC 522 or in the collection instruction in connection with an electronic record presented under the eURC.

Role of Signature in Collection Practice
A signature identifies the person assuming responsibility for the document and indicates some form of assent to its content. Signatures are regarded as adding assurance of authenticity to a document and of the veracity of the representations contained in it. By signing a document, the person signing is personally engaged to some extent in a moral, if not a legal sense, in what the document represents. It should be noted that, under URC 522, the presenting bank is not responsible for the genuineness of any signature or for the authority of any signatory to sign.

Signing an Electronic Record
Unlike URC 522, the eURC defines ‘electronic signature’ in eURC sub-article e4 (b) (iv). It is ‘a data process attached to or logically associated with an electronic record and executed or adopted by a person in order to identify that person and to indicate that person’s authentication of the electronic record’. An electronic signature may be in the form of data that appears as the name of the signer, code, a key or acceptable digital signatures and public key cryptography.

Electronic signatures and local law
In order to have validity under local law, it is often necessary for certain paper documents to be signed. Some laws also define terms such as ‘sign’ and ‘signature’.
This has further advanced in recent terms with the formulation of electronic commerce laws, which now address electronic records and their method of authentication. As such, and in order to remain in line with existing law, most electronic commerce laws include definitions for terms such as ‘sign’ and ‘signature’.
It is important to note that the eURC takes a technology-agnostic view with respect to the type of technology that may be used in this respect.

eURC SUB-ARTICLE E34 (A) (VI): “SUPERIMPOSED”

eURC Definition:
The term ‘superimposed’ means data content whose supplementary character is apparent in an electronic record.
General
eURC sub-article e4 (a) (vi) uses the term ‘superimposed’ to describe the addition of information to an electronic record after it has been created.

Use in URC 522
The term ‘superimposed’ is not defined in URC 522. The term appears in URC 522 article 13 (Disclaimer on Effectiveness of Documents) to signify the imposition of conditions either physically on the document or by implication from the terms of another related document, contract, law, or custom.

eURC SUB-ARTICLE E4 (B) (I): “DATA CORRUPTION”

eURC Definition
The term ‘data corruption’ means any distortion or loss of data that renders the electronic record, as it was presented, unreadable in whole or in part.
Use in URC 522 The term ‘data corruption’ is not used in URC 522.

Meaning of ‘data corruption’
Data can be corrupted after having been received from the presenter. As a result, there could be a degree of unease regarding the possibility of the loss of data by a bank after an electronic record has been presented. Any problem with the record prior to receipt is the responsibility of the presenter whose obligation is to present the data to the place of presentation in the format required by the collection instruction.

eURC SUB-ARTICLE E4 (B) (II): “DATA PROCESSING SYSTEM”

eURC Definition
The term ‘data processing system’ 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.

General
Article e12 (Additional Disclaimer of Liability for Presentation of Electronic Records under eURC) refers to a ‘data processing system’. Any bank that engages in an eURC collection instruction is responsible for maintaining a data processing system. This responsibility is a fundamental precondition for using the eURC.
Use in URC 522 The term ‘data processing system’ is not used in URC 522.

Meaning of ‘data processing system’
The aim was to align definitions in eURC with those used in local law. However, many legal definitions differ among themselves in formulation if not meaning. As a result, the eURC definitions are modelled on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce, which is the most widely imitated in electronic commerce legislation. In working with eURC, it is necessary to consider each applicable legal system with respect to the eURC definitions. The UNCITRAL definition of ‘automated data processing’ has been adapted for these rules.

eURC SUB-ARTICLE E4 (B) (III): “ELECTRONIC RECORD”

eURC Definition
The term ‘electronic record’ means data created, generated, sent, 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, that is:
a. capable of being authenticated as to the apparent identity of a sender and the apparent source of the data contained in it, and as to whether it has remained complete and unaltered, and
b. capable of being viewed to ensure that it represents the type and/or description of the electronic record listed on the eURC collection instruction

General
eURC sub-article e4 (b) (iii) defines “electronic record” as the term is used in the eURC.

A digital record is one that exists in digitised form only, whereas an electronic record also includes a copy of an original document that is stored in electronic form e.g. a scanned copy. The eURC definition of “electronic record” does appear to include a digitised record (‘data created…by electronic means’) but is broader than that.
The commentary to the UNCITRAL Model Law on Electronic Transferable Records states that the definition of ‘electronic transferable records’ is meant to include both functional electronic equivalents of paper records and digitised records.

Electronic commerce
In electronic commerce, data is grouped together into a unit. Although these units are often provided with designations such as ‘messages’, ‘files’ and ‘documents’, the term ‘electronic record’ has emerged as a common label to identify a grouping of data in one message, file, or document and to distinguish it from a paper document.
Document Under the eURC, an electronic record is a type of document as provided in eURC sub-article e4 (a) (iii) (document). It is separate from a paper document, which is defined in eUCP sub-article e4 (b) (vi) (paper document). Under an eURC collection instruction, documents can consist of both paper documents and electronic records, but must consist of at least one electronic record.

Electronic
Although there is no definition of ‘electronic’ in the eURC, such term would, by its nature, exclude paper documents. It is essential to also note that by using the generic term ‘electronic’, the rules avoid linkage with any specific technology or platform, thereby ensuring that the rules remain technology-agnostic. As outlined in a previous publication, ‘ICC Guide to the eUCP’ (ICC Publication No. 639), the term ‘electronic’ has generally been distinguished from imaging, which involves a different process. However, with technological advances, the distinctions have become blurred. More on this subject is outlined below.

Telefaxes and Imaging
The eURC makes no reference to telefaxes. It was once thought that telefaxes could not be electronic records both for technological reasons and because there was an original paper document that generated the telefax. With technological advances, it is possible to generate a telefax on a computer and send it to another computer as an image.
As a result, it is impossible to categorically determine whether or not a telefax is an electronic record. If the issuing bank specifies the format of required or permitted electronic records, the problem will be avoided. Such a specification is especially important when document examination is automated since it would be difficult, if not impossible, to use a system to determine all of the required data elements from an image. If it does not do so, the presenter would probably be justified in presenting required electronic records by means of telefax and it would remain with the issuing bank to convince a court that they were not electronic records.

Formatting and Electronic
Records eURC article e6 (Format) requires an eURC collection instruction must indicate the format of each electronic record, implying that if the format of an electronic record is not indicated, it may be presented in any format. Accordingly, it can be presumed that provided a document is presented in the format stipulated in the eURC collection instruction, such document constitutes an electronic record. If the presenter states a specific format for a document to be presented under an eURC collection instruction and it is not a paper document, the document should be regarded as an electronic record for purposes of interpreting the eURC.
Authenticated, apparent identity, apparent source of data and integrity of the data The eURC does not expressly define authenticate. It does, however, link the term to and embody its meaning for purposes of the eURC in its definition of ‘electronic record’.
eURC Article e4 (b) (iii) indicates what it is necessary for transmitted electronic data to contain in order to become an electronic record under the eURC. The data must not only be received into the system of the bank but also authenticated as to:
• the apparent identity of the sender; and,
• the apparent source of the data contained in the record; and,
• is capable of being viewed to ensure that it represents the type and/or description of the electronic record listed on the eURC collection instruction. The eURC does not require the electronic record to have been authenticated for it to become an electronic record, merely that it be capable of being authenticated. Whether it is actually authenticated is the responsibility of the bank. As long as the data is authenticatable, it is an electronic record for purposes of the eURC. Because of the technology involved in transmitting electronic records, it is possible for them to become unscrambled in transition and not to be complete when received or for an error to be introduced. It is expected that the bank will check the integrity of an electronic message.

Methods for Authentication
Current and evolving technology allows for numerous commercially reasonable techniques in order to authenticate an electronic record whilst applying the criteria in eURC sub-article e4 (b) (iii). The parties to the collection instruction must decide the level and amount of security to be used in authenticating a message. The UNCITRAL Model Law on Electronic Commerce provides an excellent guide to this process. Various national laws may also impose specific requirements for an electronic record to be authenticated.

Technology
Neutral The method of authentication used in the eURC is intended to be technology-agnostic and not to endorse any specific technology.
Capable of being viewed eURC sub-article e4 (b) (iii) requires that in order to qualify as an electronic record for purposes of the eURC, data must be capable of being viewed. This requirement is intrinsically linked by the requirement in eURC article e6 (Format) that the collection instruction indicate the required format. If it does so, then the data sent in that format is presumed to be capable of being viewed.
Accordingly, the requirement that data be capable of being examined is only relevant when the presenter does not actually specify a format. In such circumstance, data may be sent in any format, but it must still be capable of being viewed. It would not be possible to claim that the presentation was effective if what was sent could not be read.

Obligation to maintain a data processing system
Although banks are not obligated to act on collection instructions subject to the eURC, they are required to maintain a data processing system for the receipt, authentication, and identification of electronic records. Such a system need not be state of the art, but it should be capable of performing those minimal functions of authentication considered commercially acceptable. Given the rapid pace of technological development, maintaining such standard will require regular review, analysis, and investment as techniques evolve. In any event, it is assumed that this is a natural process for any bank involved in international trade.

Electronic commerce law
The term ‘electronic record’ has been widely used and defined in statutory provisions relating to electronic commerce. The definition used in the eURC may differ in some respects from those used in these laws. To the extent that there may be any problem, it would centre on the concepts of ‘electronic signature’ and ‘authentication’, terms covered below, rather than the definition of the term ‘electronic record’ as it is used in the eURC.

eURC SUB-ARTICLE E4 (B) (IV): “ELECTRONIC SIGNATURE”
eURC Definition
The term ‘electronic signature’ means a data process attached to or logically associated with an electronic record and executed or adopted by a person in order to identify that person and to indicate that person’s authentication of the electronic record.

General
eURC sub-article e4 (b) (iv) defines ‘electronic signature’ as data attached to an electronic record with the intent of identifying the signer and authenticating the record.

Significance
As provided in eURC sub-article e4 (b) (iv), signatures on required documents perform two separate functions in documentary credit practice:
• indicating the identity of the person signing, and,
• authenticating the document itself and the information contained in it.

Signatures under eURC
The eURC does not contain any substantive requirement that an electronic record contain an electronic signature. Its only reference to ‘electronic signature’ is contained in the explanation of ‘sign” in eURC sub-article e4 (a) (v), which indicates that the term as it appears in URC 522 also includes an electronic signature.

Signature in an electronic record
An electronic signature in an electronic record can take place by indication of the name of the signer, a code, key or acceptable digital signatures and public key cryptography given in a manner that appears to be intended to authenticate.
While the method of authenticating the document differs when it is electronic, ‘signing’ an electronic message serves the same functions as does signing a paper document. Current and evolving technology allows for numerous commercially reasonable techniques for digital signatures. The UNCITRAL Model Law on Electronic Commerce provides an excellent guide to this process. Various national laws may also impose specific requirements for digital signatures.

Technology Neutral
The definition given for ‘electronic signature’ is intended to be technology neutral and not to endorse any specific technology. Under eURC sub-article e4 (b) (iv), the name of the signer at the end of the data message would constitute an electronic signature if it appeared to be used to identify the signer and to authenticate the electronic record and its content.
Attached to or logically associated with an electronic record eURC sub-article e4 (b) (iv) requires that the data consisting of the electronic signature be attached to the electronic record or closely associated with it. In most cases the electronic signature is enclosed in the envelope of the message or embedded within the electronic record itself. It must be associated with the message in such a manner as to indicate the identity of the signer.
The reference in eURC sub-article e4 (b) (iv) to the association or connection of the data with the electronic record in order to identify the signer and authenticate the record and its content goes only to the appearance of connectedness that can be implied from examining the electronic record on its face and not to the actual intention of the signer.

Electronic signatures and local law
Local law may contain requirements that certain documents be signed in order to be effective. Such law often defines the terms ‘sign’ or ‘signature’.
One facet of the evolution of electronic commerce has been the extension of such laws to embrace electronic documents and to permit such documents to be authenticated in a manner that links with the nature of the document. As a result, many of electronic commerce laws contain a definition of these terms. Caution should be exercised in references to electronic signatures in law and practice to distinguish between a relatively simple ‘electronic signature’ and one with added precautions.
The latter has commonly been called a ‘digital signature’ for purposes of differentiation. When local law adopts the more restrictive notion of a digital signature, it may impose a requirement on an electronic signature not definitively contained in URC 522 or the collection instruction. Unless the collection instruction specifically provides, the use of the term ‘electronic signature’ in the eURC does not signify the requirement that any signature be by means of digital signature.

eURC SUB-ARTICLE E4 (B) (V): “FORMAT”
eURC Definition
The term ‘format’ means the data organisation in which the electronic record is expressed or to which it refers.

General
eURC sub-article e4 (b) (v) defines ‘format’, a concept vital to the processing of electronic records.

Background.
There is no uniform or standard system by which data is organised, nor does there exist a common protocol by which data can be read or identified by data processing systems. As a result, it is only readable if the data processing system is able to recognise the manner in which the data is organised, or its format.
Not every data processing system can recognise every format into which data can be organised. Moreover, with the fast pace of technological development, many systems of organisation are regularly issued in successive versions. It is typical that the later versions are able to read earlier ones but that earlier ones are not able to read later ones.

Meanings of Format
The term ‘format’ is used in several senses. It can mean the protocol by which data is organised, the version of that format, or the shorthand name by which that protocol is recognised and described. There is no precise distinction between these approaches, and the manner in which it is intended they be used can normally be identified from the context in which they are used. Under the eURC, the format of each electronic record must be as previously arranged between the remitting bank and the collecting or presenting bank, as required by sub-article e1 (b).
Accessing data in readable form The importance of a format lies in the ability of a data processing system to process data. If the format is not one that is recognised by the data processing system, the output is meaningless and said to be ‘unreadable’. This term implies that the data processing system cannot properly format the data in a manner that would provide meaning to a reader.

eURC SUB-ARTICLE E4 (B) (VI)” “PAPER DOCUMENT”
eURC Definition
The term ‘paper document’ means a document in a paper form.

General
eURC sub-article e4 (b) (vi) refers to a document in a paper medium, the type of document which is expected to be presented under URC 522.
URC 522 URC 522 assumes that all ‘documents’ are in a paper medium.
Need for new term By broadening the meaning of the term ‘document’ as it is used in URC 522 and in eURC subarticle e4 (a) (iii) (“document”), it became necessary to identify another term that permitted the distinction between paper and electronic records for the eURC. The term ‘paper document’ was chosen because it aptly and simply describes the traditional medium in which data was inscribed.

Paper
Printout from a computer, if presented, would be a paper document, whereas the presentation of a portable storage medium would not be. Consequently, the explanation of the sense in which the term ‘paper’ is used resorts to a reference to the ‘paper form’ in which the term was used and understood.
eURC SUB-ARTICLE E4 (B) (VII): “PRESENTER”
eURC Definition:
The term ‘received’ means the principal or a party that makes a presentation on behalf of the principal

General
Presenter is used in article e11 (Data Corruption of an Electronic Record). Electronic records will be initially presented by the presenter (principal or a party on behalf of the principal) to the remitting bank, and then by the remitting bank to the collecting or presenting bank. The act of presentation on behalf of the principal to the remitting bank is already covered by URC 522 subarticle 3 (a) (ii).

eURC SUB-ARTICLE E4 (B) (VIII): “RECEIVED”
eURC Definition:
The term ‘received’ means when an electronic record enters a data processing system, at the agreed place for presentation, in a format capable of being accepted by that system. Any acknowledgement of receipt generated by that system is not to be construed that the electronic record has been authenticated and/or viewed under the eURC collection instruction

General
eURC sub-article e4 (b) (viii) defines ‘received’ when used with respect to an electronic record.

Significance in practice
Receipt is critical in collection presentations. Documents are not presented until they are received. It is possible to speak in terms of the receipt of a particular document or of a presentation. In regard to paper documents where they are presented in one lot, the two notions occur simultaneously.
With respect to the presentation of paper, a paper document is ‘received’ when it comes into the control of the bank. This step can occur when it is delivered to a clerk or to the mailroom. Once the document comes into the bank’s control, presentation has taken place and the bank assumes the risk of loss of the document.

Receipt of electronic records
Delivery of an electronic record will commonly be made electronically to the bank’s data processing system, so that the element of passing into the bank’s control is still present. There is, however, an additional element, namely that in order to meet the requirements of presentation the electronic record can be authenticated. In this case, mere acceptance into the bank’s system is not sufficient to constitute receipt of an electronic record that is transmitted electronically. As used in sub-article e4 (b) (viii) ‘acceptance’ means that the record can be authenticated, not that it has passed into the control of the bank’s system.

Non-Receipt
As with a paper document under the URC 522 and eURC, non-receipt of an electronic record means that it has not been presented. Non-receipt can occur if the record does not reach the bank’s systems or if it is not authenticated by those systems. As provided in eURC sub-article e7 (c) (Presentation), such a record is deemed not to have been presented.

Acknowledgments
Computer systems will, on occasion, automatically send out an acknowledgment to the sender that a message has entered the system. Such an acknowledgment does not necessarily imply that the electronic record has been received in the technical sense used in eURC sub-article e4 (b) (viii) since authentication may not have occurred at that time. In the event of a dispute about whether an electronic record was received, it could be a factor for which the significance would have to be assessed under local law.

eURC SUB-ARTICLE E4 (B) (IX): “RE-PRESENT”
eURC Definition:
The term ‘re-present’ means to substitute or replace an electronic record already presented.
Use in URC 522 The term ‘re-present’ is not used in URC 522.

Meaning of ‘re-present’
eURC article e11 (Data Corruption of an Electronic Record) uses the term ‘re-present’. In this context, the term means to substitute or replace an electronic record already presented.

“AUTHENTICATE/AUTHENTICATION”

General
The terms ‘authenticate’ and ‘authentication’, while used in the eURC, are not expressly defined.

Significance in paper documents
Authentication in the paper world is the process by which the validity of the representations and the paper documents containing them are ascertained. There are, necessarily, various levels of authentication.

Significance in electronic commerce
Authentication has a very different significance in electronic commerce. Because of the possibility of greater levels of authentication than are feasible in the paper world, and because of the unwillingness of participants to accept levels of risk that they normally accept for equivalent documents in the world of paper, there has been considerable attention in electronic commerce to authentication of data. As a result, various levels of authentication have arisen, some tied to specific technologies.

Uses of ‘authenticate’
Depending on the context, the expectations of the users, and what is commercially reasonable, the constitution of a minimally acceptable level of authentication not only varies, but also is linked to specific technologies.

eURC
The term ‘authenticate’ is used in the eURC in two different senses:
• In eURC sub-article e4 (b) (iii) (Electronic record), it means identifying the person sending a message and the source of the message.
• In eURC sub-article e4 (b) (iv) (Electronic signature), it means associating the person authenticating with the content of the message authenticated. The eURC does not require the electronic record to have been authenticated for it to become an electronic record, merely that it be capable of being authenticated. Whether it is actually authenticated is the responsibility of the bank. As long as the data is authenticatable, it is an electronic record for purposes of the eURC. The eURC requires, in order to qualify as an electronic record for purposes of the eURC, that data must be able to be authenticated with respect to the apparent identity of the sender, must be able to be authenticated with respect to the apparent source of the data, and must be able to be authenticated with respect to its complete and unaltered character. As such, the parties to a collection instruction must decide on the level and amount of security used to authenticate the message. The UNCITRAL Model Law on Electronic Commerce, amongst others, provides a guide to this process. Various national laws may also impose specific requirements for an electronic record to be authenticated. As such, this should not be an issue for the rules.

Authentication under local law
Many of the laws that address electronic commerce define authentication, and some even tackle the issue of when and at what level it is required. While most such laws are technology-neutral and do not require a higher degree of authentication than would be required for the equivalent information in a paper medium, there are some that impose mandatory requirements of authentication for certain types of documents that are more rigorous than is required by the eURC.