Regional Conference on
TRADE FACILITATION, THE SINGLE WINDOW
CONCEPT, AND HARMONIZATION OF TRADE DATA
REQUIREMENTS IN THE SOUTH CACASUS
Introduction to
Draft Recommendation 35:
Establishing a Legal Framework for an
International Trade Single Window
Professor William J. Luddy, Jr.
Special Legal Counsel - WCO
June 2009
Presentation made by Mario Apostolov, Regional Adviser UNECE Trade
mario.apostolov@unece.trade
DISCLAIMER
Please note that the views and analysis that
are provided here or discussed during
our session are not necessarily those of
any organization with which Bill Luddy
may be working. They represent his
views on the legal topics in this
presentation.
Introduction
• International recognition of the importance of
the legal infrastructure of the Single Window
for International Trade.
• Regional Developments: ASEAN, APEC, SEE,
The European Commission, and others
• Leading International Organizations
– UN Centre for Trade Facilitation and Electronic
Business (UN/CEFACT)
– United Nations Commission on International Trade
Law (UNCITRAL)
– The World Customs Organization
• Industry Groups
Introduction (2)
• Strategic Considerations:
– International Trade Development
– Enhancing Trade Competitiveness
• Connecting to Global Supply Chains
• UN/ECE/CEFACT Buy - Ship - Pay Model
– Importance of International Legal Standards
• Intersection of Electronic Commerce and SW
Legal Frameworks at the National and
International Levels
Introduction (3)
• The Complexities of the Legal Issues in
Cross-Border Single Window Operations
• Avoiding Dual ICT Legal Regimes
• Private Sector Legal Concerns
UN/CEFACT Recommendations
• Recommendation 33 - Recommendation and Guidelines
on Establishing a Single Window to Enhance the
Efficient Exchange of Information between Trade and
Government
• Published by UN/ECE in 2005
• UN/ECE/CEFACT Legal Group, began work, in
cooperation with the International Trade and Business
Processes Group – International Trade (TBG15), on
Recommendation 35 in 2006
• Draft Recommendation 35 approved and has
completed the Public Review process and is awaiting
final approval - expected in the next several months
UN/CEFACT Recommendation 35
1.
2.
3.
4.
Undertake a study (including e-Commerce legal benchmarking and
‘gap analysis’ studies) in order to determine an appropriate set of
measures that may need to be taken to address legal issues related to
national and cross-border exchange of trade data required for Single
Window operations (The International Trade Single Window Legal
Framework.)
Use the UN/CEFACT checklist and its guidelines (Annexes A and B) to
ensure that the most frequent legal issues related to national and
cross-border exchange of trade data are included in the framework.
Amend existing legislation, regulations, decrees, etc., if necessary, to
address the identified legal issues and gaps.
Utilize international standards, international legal instruments, and
soft law instruments, where available, throughout the entire process
of creating a legally enabling environment for an International Trade
Single Window.
UN/CEFACT Recommendation 35 (2)
• Guidelines to the Recommendation
on Establishing a Legal
Framework for the International
Trade Single Window:
– Annex A: Checklist of Legal Issues
for Single Window Operations
– Annex B: Checklist Guidelines
– Annex C: Toolkit
Annex B: Checklist Guidelines
•
A legal basis for implementing a Single
Window facility
–
–
National Law and Regulations enabling the operation
of the Single Window
Utilize International Legal Standards
–
Legal authorization for Cross-Border transactions
–
Functional Equivalence of paper and electronic
documents
–
Electronic Evidence used in enforcement and civil
actions
–
Cross-Border Jurisdiction in International
Transactions
Annex B: Checklist Guidelines (2)
•
SW facility structure and organization
–
Possible SW Structures
•
•
•
–
Government operated SW facility
Joint Public-Private Partnerships (PPP)
Private Sector Entity
Formal Legal Agreements
•
•
•
•
Operating Agreements
Memoranda of Understanding
End User Agreements
Service Level Agreements
Annex B: Checklist Guidelines (3)
•
Data Protection
–
Information Security
•
•
•
–
Privacy Issues
•
•
–
–
Access to and sharing of Data
Information Security Agreements (ISAs)
Risk Analysis and avoiding Data Breaches
Personally Identifiable Information (PII)
Privacy Impact Assessments (PIA)
Confidential Trade Data Protection
Considerations for creating National Legislation
and/or Regulation for Data Protection
Annex B: Checklist Guidelines (4)
•
Authority to access and share data between
government agencies
–
–
–
Which government agencies are permitted to
access the SW and what information may be
shared by the SW with each governmental
agency?
Memoranda of Understanding between the SW
operator (e.g., Customs) and those governmental
agencies authorized by law to access SW data.
Data Retention requirements.
Annex B: Checklist Guidelines (5)
•
Identification, Authentication and
Authorization
–
Access Security Measures for
•
•
–
–
Emerging Identity Management Legal Trends
Electronic & Digital Signature Legal Issues
(Technology Neutrality)
•
•
Government Agency Employees
End Users
Potential Barriers to Trade
Data Quality Issues
–
–
Accuracy and Integrity of Data processed in the
SW
Audit trails, logging and recording mechanisms
Annex B: Checklist Guidelines (6)
•
Liability issues (obligations and
responsibilities)
–
Inaccurate or incomplete data
•
•
–
–
–
Processing Errors
Submission Errors
Enforcement and Sanctions
Data Breaches
Monetary and other Damages
•
•
Within the national legal framework
Cross-border damages and enforcement
Annex B: Checklist Guidelines (7)
•
Arbitration and dispute resolution
–
–
•
Advantages of alternative dispute
resolution (ADR) mechanisms
Incorporating ADR provisions in bi-lateral
and multi-lateral agreements
Electronic documents
–
–
Overcoming the barriers of “paper”
The principle of Functional Equivalence
Annex B: Checklist Guidelines (8)
•
Electronic archiving
•
Data Retention Programs
•
•
•
•
Technology considerations
Legal considerations
Use of archived Electronic Documents and
Messages in Administrative and Judicial
Proceedings
Cross-Border Legal Considerations
Annex B: Checklist Guidelines (9)
•
Intellectual property rights (IPR) and
database ownership
–
Ownership and/or control of data
submitted to the SW?
•
–
Government agencies? Commercial parties
submitting data to the SW?
IPR Related to the SW “system”
•
•
•
Establishing ownership/licence rights in
computer hardware, firmware and software
Rights to upgrades and software integration
Warranties of non-infringement, defense costs
and indemnification clauses
Annex B: Checklist Guidelines (10)
•
Competition
–
–
Antitrust and Protectionist Concerns
Consideration of GATT Obligations
•
Articles V, VIII, and X
Annex C: Toolkit
•
Importance of International Legal Standards - Redux
•
For example, International Legal Guidance Texts:
–
UN/ECE/CEFACT: Recommendation 35 (2009)
–
UNCITRAL:
–
•
UN Electronic Communications Convention (2005)
•
UNCITRAL Model Law on Electronic Commerce (1996)
•
Promoting confidence in electronic commerce: legal issues on
international use of electronic authentication and signature
methods (2009)
Others….
Checklist of basic legal issues
1) Law on electronic signatures
 Is the system working on a PKI basis?
 Is there a root CA + a network of CAs?
2) Law on electronic commerce
3) Law on e-government
4) Law on data protection
5) Do sectoral laws (e.g. sanitary laws)
envisage the use of sector and/or
country specific codes
6) Are there requirements of paper originals
in law?
How to tackle requirements
of paper originals in law?
• National legal system determines the
procedure of elimination of form
requirements
• The complex method is to identify all
relevant provisions containing form
requirements and amend them
• E-commerce laws are based on a general
clause making electronic records
functionally equivalent to paper
documents
Single Window Legalities:
The Adventure Continues!
Questions?
Thank you
Professor William J. Luddy, Jr.
Bill.Luddy@mac.com
William.Luddy@wcoomd.org
Mario Apostolov, Regional Adviser,
UNECE Trade Division
mario.apostolo@unece.org