Transferability of Electronic Bills of Lading
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Purpose: This study aims to (1) introduce the issues related to the transfer of rights, which have been, for a long time, identified as an obstacle to the widespread use of electronic bills of lading, and (2) compare or evaluate critically the concepts of the main legal requirements for transferability adopted by international or domestic regimes so far. Composition/Logic: Chapter 1 introduces the paper. Chapter 2 discusses the functions and effects of transferring a bill of lading by providing the historical background and highlighting leading cases. Chapter 3 explains the need for electronic bills of lading, followed by functional equivalence, which is the most important principle to reinterpret conditions for the transfer of rights by electronic bills of lading. Chapter 4 provides a critical evaluation of the legal requirements for transferability, focusing on (1) the character of an original bill of lading as a document of title and (2) the transfer of possession, after which the rest of the chapter explains the application of the functional equivalence requirements to technical approaches. Chapter 5 summarizes the study and concludes the paper. Findings: Since “uniqueness,” including its technical challenges, is originally based on the physical transfer of a paper document, it is neither accurate nor appropriate to apply it to electronic bills of lading. “Singularity” has been recommended to replace “uniqueness,” but it is indistinguishable and confusing as a name for the identifiable record. As “control” or “transfer of control” has been adopted in international instruments, it is necessary for many states to accept the control approach to increase the international uptake of electronic bills of lading and harmonized requirements. Originality/Value: The clear explanations of new legal concepts and conditions in this paper contribute to a greater legal certainty. Unlike other studies that encompass various types of electronic securities, this paper focuses on the transferability of electronic bills of lading. This approach is valid, considering the complexity of international carriage of goods by sea and the uniqueness of the status of bill of lading as a document of title. The discussion in this paper is timely as it covers the new UNCITRAL Model Law on Electronic Transferable Records (2017) in the context of facilitating further use of electronic bills of lading. Considering the insufficient comparative study on the legal regimes for electronic bills of lading, the comparative assessment of the various transferability requirements in this paper makes a significant contribution to the current debate and potential of electronic bill of lading.
Abstract
Purpose: This study aims to (1) introduce the issues related to the transfer of rights, which have been, for a long time, identified as an obstacle to the widespread use of electronic bills of lading, and (2) compare or evaluate critically the concepts of the main legal requirements for transferability adopted by international or domestic regimes so far. Composition/Logic: Chapter 1 introduces the paper. Chapter 2 discusses the functions and effects of transferring a bill of lading by providing the historical background and highlighting leading cases. Chapter 3 explains the need for electronic bills of lading, followed by functional equivalence, which is the most important principle to reinterpret conditions for the transfer of rights by electronic bills of lading. Chapter 4 provides a critical evaluation of the legal requirements for transferability, focusing on (1) the character of an original bill of lading as a document of title and (2) the transfer of possession, after which the rest of the chapter explains the application of the functional equivalence requirements to technical approaches. Chapter 5 summarizes the study and concludes the paper. Findings: Since “uniqueness,” including its technical challenges, is originally based on the physical transfer of a paper document, it is neither accurate nor appropriate to apply it to electronic bills of lading. “Singularity” has been recommended to replace “uniqueness,” but it is indistinguishable and confusing as a name for the identifiable record. As “control” or “transfer of control” has been adopted in international instruments, it is necessary for many states to accept the control approach to increase the international uptake of electronic bills of lading and harmonized requirements. Originality/Value: The clear explanations of new legal concepts and conditions in this paper contribute to a greater legal certainty. Unlike other studies that encompass various types of electronic securities, this paper focuses on the transferability of electronic bills of lading. This approach is valid, considering the complexity of international carriage of goods by sea and the uniqueness of the status of bill of lading as a document of title. The discussion in this paper is timely as it covers the new UNCITRAL Model Law on Electronic Transferable Records (2017) in the context of facilitating further use of electronic bills of lading. Considering the insufficient comparative study on the legal regimes for electronic bills of lading, the comparative assessment of the various transferability requirements in this paper makes a significant contribution to the current debate and potential of electronic bill of lading.
참고문헌 (51)
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