III.A International agreements relevant for cross-border paperless trade facilitation

III.A.1 Which international agreements relevant for paperless trade facilitation are in force in your country?

Countries may give legal recognition to foreign electronic communications or documents on the basis of reciprocity, which leads to mutual recognition of each other’s electronic communications or documents. Alternatively, a country may also unilaterally give legal recognition to electronic communications or documents that originate in another country.

As seen above (sections I.B. to I.E.), domestic laws may contain provisions regarding the validity and effect of foreign electronic communications and signatures, the transfer of data across borders, etc.

This section focuses on international law instruments, i.e. instruments binding under international law that may be called a “convention”, a “treaty,” etc.

International law instruments may deal directly with the legal status of electronic communications or documents exchanged across borders. The ECC is such an instrument.

International law instruments may also contain provisions specific to cross-border paperless trade facilitation. Such instruments may be of global scope, like the WTO’s TFA, regional or bilateral. They may concern broader areas of trade relations (for e.g., FTA), and take a high-level approach.

Article 14.9 of the CPTPP, for instance, sets high-level goals for paperless trading in the member States.

14.9. Paperless trading

Each Party shall endeavour to:

a. make trade administration documents available to the public in electronic form; and

b. accept trade administration documents submitted electronically as the legal equivalent of the paper version of those documents.

Alternatively, those international agreements may focus on specific areas and concentrate on selected uses of electronic records, such as customs and electronic payments.

Transport or transit-related conventions that recognize the use of electronic equivalents of paper-based documents are a specific sub-set of international agreements relating to paperless trade facilitation.

One example of such conventions is the Additional Protocol to the Convention on the Contract for the International Carriage of Goods by Road (CMR) concerning the Electronic Consignment Note.

Many other areas of the law are important to cross-border paperless trade facilitation. Some of them are standardization of electronic trade documents, consumer protection and privacy, cybercrime, electronic evidence, government procurement, investment and taxation. As a result, countries may bilaterally, multilaterally or regionally negotiate agreements to address these areas of laws.

For e.g., Singapore has recently concluded Digital Economy Partnership Agreements with other countries (Australia, Chile and New Zealand) made of different “modules”, in the form of MoUs. One of those MoUs deals with the Digital Economy in general; another, on Trade Facilitation aims, to develop compatible paperless trading systems. Further, the MoU on Cooperation for Electronic Invoicing aims to expand electronic invoicing interoperability. The MoU on Cooperation in Personal Data Protection aims to protect personal information and uphold individuals’ privacy rights as data flows across borders.

All international agreements that may impact paperless trade facilitation and that are in force in your country are relevant.

If the agreements set out rules or technical standards that foreign electronic communications or signatures must meet in order to be recognized in your country, please mention them. If the agreements require domestic legislation to implement them, please mention that legislation (or its absence).

It may be particularly helpful to identify the types of electronic exchanges and documents that are permitted by these agreements (for e.g., certificates of origin; electronic invoices), and any differences between legal requirements for domestic and for international electronic exchanges and documents.

III.A.2 Are there technical or operational international agreements providing for legal recognition of electronic communications or documents?

The implementation of certain trade facilitation treaties may call for the adoption of technical or operational agreements. This is for instance the case with the ASEAN Trade in Goods Agreement (ATIGA) electronic Form D to implement the exchange of electronic certificates of origin in the ASW.

While these agreements engage States and have international legal nature, their conclusion may be delegated to technical bodies as they are meant to operate under the umbrella of a framework agreement.

Some of these agreements apply only to certain types of transactions (such as B2B or B2G) or to specific types of documents or trust services (such as digital signatures). Some of them may be technology neutral while others are technology specific.

These agreements have significant practical relevance as they represent the link between high-level legal statements and their technical implementation.

III.A.3 Are contracts used to provide for mutual recognition of electronic communications and signatures?

Trading partners may agree on the legal status of electronic communications exchanged across borders, within the limits of mandatory law. A number of tools are available to that end. EDI cross-border agreements are one of them. Others include federated identity schemes that provide a common contractual reference for the use of certain trust services, including electronic signatures.

Some of these contractual arrangements aim to legally enable the cross-border use of trade, logistics and customs electronic documents. This may be done by using PKI-based trust services, especially digital signatures. In that case, such agreements normally describe the standards that the certifying authorities must meet in each country for the recognition of their services as trusted intermediaries (i.e. their “trust services”).

The PAA offers an example of a private consortium that uses mutual recognition contractual agreements under which digital signatures issued in one country in compliance with the requirements of the consortium are accepted by other members of the consortium.

If any such agreement is used in your country, please describe its scope and content.