Lloyd's Maritime and Commercial Law Quarterly
Electronic trade documents and the conflict of laws in the United Kingdom
Andrew Dickinson *
The Electronic Trade Documents Act 2023, which entered into force on 20 September 2023, seeks to facilitate the use of trade documents (including bills of exchange, promissory notes and bills of lading) in electronic form by assimilating these instruments, and their legal effects, to the equivalent paper trade documents, provided that the systems used to process the relevant information meet certain technological requirements. However, the Act contains no provision that expressly addresses the legislation’s cross-border dimension or its relationship to the United Kingdom’s conflict of laws rules. This article considers how these matters should best be addressed in order to secure the Act’s promised economic benefits.
I. INTRODUCTION
The Electronic Trade Documents Act 20231 received Royal Assent on 20 July 2023, entered into force two months later, on 20 September 2023 and applies to documents issued from that date.2 Its purpose is to facilitate the use of trade documents (including bills of exchange, promissory notes and bills of lading) in electronic form by assimilating them to the equivalent paper trade documents, provided that they meet certain technological requirements with respect to their identity, security, holding and transfer.3
The Act, which covers England and Wales, Scotland and Northern Ireland,4 contains no provision that expressly addresses the legislation’s cross-border
* Fellow, St Catherine’s College and Professor of the Conflict of Laws, University of Oxford.
The author is the specialist editor responsible for Ch.33 of Dicey, Morris & Collins, The Conflict of Laws, 16th edn (Oxford, 2022) and is a member of the Law Commission’s expert advisory panel for the project “Digital assets: which law, which court?”. Professor Sarah Green, the responsible Law Commissioner, and members of the team working on the project (Elsabe van der Sijde, Tusmo Ismail and Amelia-Rose Edwards) provided valuable comments on an earlier draft of the paper. The opinions expressed are those of the author.
The following abbreviations are used:
Dicey, Morris & Collins: Lord Collins of Mapesbury and Jonathan Harris (eds), Dicey, Morris & Collins, The Conflict of Laws, 16th edn (Oxford, 2022);
Law Com No 405: Law Commission, Electronic trade documents: Report and Bill (Law Com No 405, 2022);
LCCP 254: Law Commission, Digital assets: electronic trade documents: A consultation paper (LCCP 254, 2021);
MLETR: UNCITRAL Model Law on Electronic Transferable Records (2017).
1. 2023 c 38.
2. Electronic Trade Documents Act 2023, s.8(2)–(3). Unless otherwise stated, footnoted references to statutory provisions are to the provisions of the 2023 Act.
3. Electronic Trade Documents Bill (HL Bill 57), Explanatory Notes, para.2.
4. Section 8(1).
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