LIST OF ABBREVIATIONS BOLERO Bills of Lading Electronic Registry Organization CMI Rules Comité Maritime International Rules for Electronic Bills of Lading 1990 COGSA 1992 Carriage of Goo
Reason for choosing the topic
Free cross-border trade is a significant trend today, largely driven by the World Trade Organization, which includes 164 members representing 98% of global trade International transportation, particularly maritime shipping, plays a crucial role in this global landscape The United Nations Conference on Trade and Development emphasizes that maritime transport accounts for nearly 80% of global trade by volume and over 70% by value, serving as the backbone of international trade and the global economy In Vietnam, 90% of imported and exported goods are transported by sea, highlighting the vital role of maritime shipping in the country's transportation infrastructure and economic development.
The expansion of global trade has led to an increase in the production and international shipping of paper documents However, the rapid advancement of technology has shifted preferences towards online processes for faster transactions Consequently, the electronic generation and transmission of transport documents, including invoices, booking notes, and maritime waybills, have become standard practice Among these, the bill of lading is often referred to as the "soul" of the shipping process.
1 WTO IN BRIEF, World Trade Organization, https://www.wto.org/english/thewto_e/whatis_e/inbrief_e/inbr_e.htm#how_the_wto_is_organized, accessed on 1 April 2023
2 Georgescu, C (2014), “The role of maritime transport in the development of world economy”, Knowledge Horizons – Economics, (6), pp 177–184
3 Review of Maritime Transport 2018, UNCTAD Prosperity for all, https://unctad.org/webflyer/review-maritime- transport-2018, accessed on 1 April 2023
4 Strengthening Maritime Transportation, Vietnam Maritime Corporation, http://vinalines.com.vn/vi/tang-cuong- ket-noi-van-tai-bien/, accessed on 1 April 2023
The electronic bill of lading has emerged as a vital document in international trade, gaining traction within the logistics industry due to its efficiency and cost-effectiveness in managing the shipping process As highlighted by Richard, BK in the Tulane Maritime Law Journal, the adoption of electronic data interchange is reshaping traditional practices, making the shipping process smoother and more streamlined.
In this article, I will explore the "Regulations of Electronic Bill of Lading in Vietnam," highlighting the necessity for this modern approach as it is set to replace traditional paper bills I will provide a legal analysis of electronic bills of lading in comparison to paper versions, discussing their advantages and disadvantages Additionally, I will review the current legal framework surrounding electronic bills of lading in Vietnam to assess their implementation and recognition Finally, I will draw insights from international regulations, foreign legislations, and model laws to offer recommendations for improving Vietnam's approach to electronic bills of lading.
Literature review
Oversea
In the digital age, the electronic bill of lading has garnered significant attention in maritime transport, marking an important initial step in recognizing this emerging trend It serves as a crucial foundation for developing recommendations and solutions to address existing inadequacies in the industry.
The electronic bill of lading is poised to revolutionize shipping documentation, as highlighted by Demetriou (2015) This shift is crucial for establishing and applying future legal regulations in the industry Notable projects are emerging that will shape the landscape of electronic documentation in shipping.
Some scientific theses can be mentioned as: “Switching paper to electronic bill of lading: Legal perspective and reform options for Vietnam” by Thi Mai Anh Doan in
This thesis, conducted in 2018, aims to explore the legal implications of electronic bills of lading in Vietnam It seeks to identify the challenges that need to be addressed to successfully implement this system and promote the transition to a paperless maritime commerce era in the country.
In 2020, Ali Abbas Khayoon Al-Naseri of the World Maritime University conducted a Ph.D dissertation titled "The Legal Recognition of Electronic Bill of Lading." This research employs two methodologies: an international approach that examines contemporary model laws, conventions, and contract formats, and an English law perspective focused on recent case law and statutes By analyzing the legal recognition of electronic bills of lading through these two lenses, the study explores whether electronic bills can legally function as equivalents to traditional paper bills of lading.
In her 2022 Master Thesis at the University of Piraeus, Triantafyllia Lazaretou explores "The Use of Electronic Bill of Lading in Shipping and the Legal Issues Arising." The research highlights the challenges of traditional paper bills of lading and emphasizes the need for electronic alternatives, detailing their benefits and the legal concerns, particularly regarding signature validity Additionally, the study examines the Comité Maritime International Rules for Electronic Bills of Lading (1990), the Model Law on Electronic Commerce (1996), and four recognized electronic bill of lading platforms—Bolero, essDocs, E-titleTM, and EdoxOnline—illustrating the shipping industry's ongoing struggles with negotiability and the transfer process.
Several significant scientific articles address the electronic bill of lading, including Vasileios Ziakas's 2018 work, which examines its advantages and disadvantages while considering its legal recognition in international conventions and assessing its practical feasibility and associated risks In 2022, Francisco Petronilho, Hugo Fonseca, and André Zúquete conducted a study analyzing the use of electronic bill of lading on existing platforms through a SWOT analysis, highlighting specific strengths, weaknesses, opportunities, and threats Additionally, Israel Woldekidan HAILEYESUS's 2020 research evaluates Ethiopia's legal environment to determine its compatibility with the adoption of electronic bill of lading, focusing on potential legal concerns and assessing the existing legal framework related to electronic bill of lading in the country.
Recent studies have explored the legal framework surrounding electronic bills of lading, including Niels-Philip Abdellatif's 2020 work on "An Ethereum bill of lading under the Model Law on Electronic Transferable Record." Additionally, Jung-Ho Yang's 2019 research focuses on the "Applicability of blockchain-based bill of lading under the Rotterdam Rules and Model Law on Electronic Transferable Record." Furthermore, the 2020 study by Stefan Wunderlich and David Saive examines the challenges of paperless trade in their research titled "The electronic bill of lading challenges of paperless trade."
Research conducted internationally has significant scientific value, revealing insights into the electronic bill of lading and its legal recognition across various legal systems This foundational information serves as a basis for further exploration within the context of Vietnamese law The study highlights deficiencies in the application of electronic bills of lading, particularly regarding their function as documents of title Proposed solutions, while encompassing general measures like ratifying conventions and model laws, often lack the specificity needed to effectively address challenges such as the transfer of electronic bills of lading The author will critically analyze these solutions in relation to Vietnamese law to provide a comprehensive understanding.
Vietnam
The topic of “electronic bill of lading and its legal recognition” is still relatively unexplored in academic publications A few studies include:
In 2015, Nguyen Thai Son's article, “Electronic Bill of Lading and Its Application in Vietnam,” highlighted the significance of adopting electronic bills of lading in the country Based on a study involving one hundred business owners and experts in international trade, shipping, and forwarding, the paper emphasizes that the implementation of electronic bills of lading is essential, aligns with global trends, and is both necessary and feasible for Vietnam Furthermore, it outlines critical prerequisites that businesses and the government must fulfill to effectively transition to electronic bill of lading systems.
In 2022, Nguyen Thi Cam Thuy and Nguyen Bao Ngan co-authored an article titled "Electronic Bill of Lading - Conditions Apply in Vietnam," which discusses the foundational aspects leading to the adoption of electronic bills of lading The authors analyze the current usage of electronic bills of lading in Vietnam and provide a comprehensive proposal for their effective implementation.
The research on electronic bills of lading in Vietnam remains limited in both quantity and content, primarily focusing on technical requirements and infrastructure without thoroughly analyzing the legal recognition and functional equivalence of these documents Existing studies emphasize the need for coordination among state agencies and stakeholders to establish a comprehensive legal framework Despite these limitations, they contribute valuable theories relevant to the transition to paperless maritime shipping This article aims to build upon these findings by providing an in-depth analysis of Vietnam's regulations regarding electronic bills of lading and offering recommendations for their comprehensive legal recognition, thereby enhancing the legal framework for electronic bills of lading in the country.
Aims, object and scope of the thesis
This study aims to assess the acceptance of electronic bills of lading under Vietnamese law and to evaluate whether they hold the same legal recognition and functionality as traditional paper bills of lading, which serve three key purposes.
This research focuses on the regulations governing bills of lading and electronic bills of lading in Vietnam, specifically examining the Vietnam Maritime Code 2015 and the Law on Electronic Transactions 2005 It also analyzes the initial version of the Draft Law on Electronic Transactions, along with the latest draft dated February 6, 2023, which was revised following a conference by the Standing Committee of the National Assembly.
On February 20, 2023, eight international conventions were highlighted, including the Comité Maritime International's Rules for Electronic Bills of Lading (1990) and the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (1924) This encompasses the Hague Rules of 1924, along with amendments introduced by the Protocol to amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, as well as the United Nations Convention on the Carriage.
7 https://vibonline.com.vn/wp-content/uploads/2022/05/1.-Du-thao-Luat-GDDT-sua-doi-2.pdf, accessed on 6 March 2023
8 https://vibonline.com.vn/du_thao/du-thao-luat-giao-dich-dien-tu-sua-doi, accessed on 6 March 2023 of Goods by Sea 1978, foreign laws: Electronic Transactions Act 2010 (amended in
2020), Carriage of Goods by Sea Act 1992 of United Kingdom and relevant regulations:
This report examines the regulations surrounding electronic bills of lading as outlined in the Vietnam Maritime Code 2015, the Law on Electronic Transactions 2005, and the Draft Law on Electronic Transactions (amended) dated February 6, 2023 Following the National Assembly Standing Committee conference on February 20, 2023, the report identifies existing inadequacies and offers recommendations for improvement.
Regarding the spatial scope of the topic, the research was conducted in Vietnam.
Methodology
In the research, the authors used 2 two core methods:
The analytical method is employed to elucidate theoretical aspects and assess the current legal framework governing traditional and electronic bills of lading This approach facilitates a comprehensive understanding of the practical application of electronic bills of lading within existing systems Consequently, the author identifies the deficiencies and limitations present in Vietnam's legislation regarding electronic bills of lading.
The comparative method involves analyzing various legal frameworks, including international conventions, model laws, and foreign legislations, alongside Vietnamese law This approach highlights the amendments made in these laws and identifies areas within Vietnamese legislation that require updates or modifications By examining these differences, we can better understand the necessary legal reforms needed for alignment with global standards.
Scientific and applicable value
This report presents a comprehensive analysis of electronic bills of lading, examining their theoretical aspects and relevant regulations under Vietnamese law while comparing them with international legislation It aims to raise awareness and promote the practical use of electronic bills of lading, providing a scientific foundation for enhancing legal frameworks and improving regulatory efficiency in Vietnam amidst ongoing international integration.
Structure of the project
The essay comprises three chapters in addition to the Preface, Conclusion, and References list:
Chapter 1: General overview of electronic bill of lading
Chapter 2: The practice of regulations of electronic bill of lading in Vietnam, lessons and recommendations for Vietnam
GENERAL OVERVIEW OF ELECTRONIC BILL OF LADING 9 1.1 The traditional bill of lading as a paper-based document
Definition of bill of lading
The bill of lading (B/L) plays a crucial role in global transportation by establishing a secure trading environment through the documentation of rights and obligations in maritime transactions Originating from trade customs, the B/L evolved from the "ship's register" used in the 11th century, when merchants traveled without formal documentation By the late 14th century, the B/L emerged as a receipt for goods issued by ship owners to merchants who opted not to accompany their cargo Over time, it became the essential shipping document that evidences the contractual relationship between shippers and carriers, leading to the necessity for merchants and carriers to exchange cargo advice letters and ship's registers.
9 Miriam Goldby (2016), “Bill of lading” in David Joseph Attard and others (eds), The IMLI Manual on International Maritime Law (II), Shipping Law, Oxford University Press, pp 310
10 Sir Richard Aikens, Richard Lord QC, Michael Bools QC (2015), Bill of lading (Second edition ed.), London: Informa Law from Routledge, pp 1-17
11 Nickolas Gaskell, Regina Asariotis and Yvonne Baatz (2000), Bill of lading: Law and Contracts (First edition), pp 1
12 John Furness Wilson (2010), Carriage of Goods by Sea (7th edn), Pearson/Longman, pp 115
13 University of Oslo (2019), Introduction of electronic bill of lading to the carriage of Goods by Sea: The need for
Ratification of Rotterdam Rules, pp 12
The expansion of maritime trade in the 16th century led to the emergence of the bill of lading (B/L) as a negotiable document, reflecting the evolving practice of transferring ownership of goods through endorsement Initially used solely for recording the receipt of goods between shippers and carriers, the B/L has transformed over the centuries into a sophisticated legal instrument that addresses the needs of parties involved in international trade, including import and export transactions, international payments, and cargo insurance.
To understand Bills of Lading (B/L), it's essential to examine them from various perspectives International treaties, such as the Hague Rules of 1924 and the Hague-Visby Rules, do not explicitly define a B/L However, the United Nations Convention on the Carriage of Goods by Sea 1978 (Hamburg Rules) provides a clear definition in Article 1.7, stating that a B/L is a document evidencing a contract of carriage by sea, indicating the carrier's responsibility for the goods and their delivery upon surrender of the document This definition highlights the significance of the document in facilitating the transfer of goods, especially when it includes provisions for delivery to a named individual or bearer.
The first sentence of the aforementioned notion discusses the “orthodox function” of a B/L as proof of a transport contract and a receipt of goods In addition, the second
14 E Francisco Petronilho, Hugo Fonseca and André Zúquete (2022), “The state of the art of the electronic bill of lading [version 1; peer review: awaiting peer review]”, F1000Research, pp 3
A Bill of Lading (B/L) is a crucial document in maritime transport, serving three primary roles: it acts as a receipt for goods, evidences the contract of carriage by sea, and functions as a document of title, indicated by terms such as "to order" or "to bearer" (Vo et al., 2010) Scholars Aikens, Lord QC, and Bools QC emphasize that a B/L must be signed by the carrier and highlight its three common characteristics: it serves as a receipt for goods, a document of title, and evidence of the carriage contract While acknowledging the lack of a universally accepted definition, Aikens et al provide a comprehensive understanding of the B/L by outlining its creation and purpose, referring to these aspects as "characteristics."
In the case of B.M Ltd v Woermann-line, the Supreme Court of Nigeria defined a Bill of Lading (B/L) as a written document, signed on behalf of the shipowner, that acknowledges the receipt of goods and commits to their delivery at the voyage's end, subject to specified conditions This establishes the B/L as a formal contract between the involved parties Additionally, in The Delfini case, Mustill LJ provided further legal insight into the nature of a Bill of Lading.
“1- It’s a symbol of constructive possession of the goods which (unlike many such symbols) can transfer constructive possession by endorsement and transfer
16 Israel Woldekidan Haileyesus (2018), Introduction and regulation of electronic bill of lading in Ethiopia: An appraisal of the legal environment and lesson from international recommendation, pp 22
17 Sir Richard Aikens, Richard Lord QC, Michael Bools QC (2015), pp 19
19 B.M Ltd v Woermann-Line (2009) 13 NWLR (Pt.1157) 149 S.C
2- It’s a document which, although not itself capable of directly transferring the property in the goods which it represents, merely by endorsement and delivery, nevertheless is capable of being part of the mechanism by which property is passed” 21
The author argues that the definitions of Bill of Lading (B/L) in the cases of B.M Ltd v Woermann-line and The Delfini fail to encompass the full range of its functions Specifically, the B.M Ltd v Woermann-line case identifies two key roles of B/L: serving as a receipt for goods and as evidence of a contract for carriage In contrast, The Delfini case primarily emphasizes the B/L's function as a document of title The author warns that the interpretation in the B.M Ltd v Woermann-line case could lead to significant misunderstandings, as it does not represent a formal contract among all parties, a point that will be elaborated upon in the following section.
A Bill of Lading (B/L) is a legal document issued by the vessel's master on behalf of the carrier, detailing essential information about the goods, including their description, quantity, and apparent quality It identifies the shipper and consignee, specifies the vessel's name, and indicates the ports of loading and discharge Serving as a receipt for the goods, proof of the transportation contract, and a document of title, the B/L is crucial in the shipping process.
Functions of bill of lading
Historically, paper bills of lading (B/L) have evolved to meet the demands of merchants, and it is essential for a document to be classified as a negotiable B/L that it fulfills three key functions.
21 Kamal, A (2017), Traditional B/L v electronic bill of lading: Pros and cons and the way forward
22 Triantafyllia Lazaretou (2022), The use of electronic bill of lading in Shipping and the Legal Issues Arising, pp
Accordingly, this section will discuss three functions namely receipt for the goods, evidence of a contract for the carriage of goods, and a document of title
Under the Hamburg and Hague-Visby Rules, carriers are obligated to issue a Bill of Lading (B/L) upon the shipper's request The B/L must contain essential information about the goods, including leading marks, the number of packages or pieces, quantity, and weight.
The Hamburg Rules mandate that specific details, referred to as "particulars," must be included in the Bill of Lading (B/L), which is more extensive than the requirements set by the Hague-Visby Rules This indicates that the carrier has an obligation to issue a B/L that accurately reflects the condition of the loaded goods Consequently, if there are discrepancies in the condition or quantity of the goods at the time of delivery compared to when they were lost or damaged, the carrier may be held liable.
Under the Hague-Visby Rules and Harm Burg, a Bill of Lading (B/L) is regarded as "prima facie" evidence, which historically signifies a superficial or initial impression In contemporary usage, "prima facie" refers to something that is evident upon initial observation, both in logical contexts and everyday English.
According to Article 3.3 of the Hague-Visby Rules, the carrier or their agent must issue a Bill of Lading (B/L) to the shipper upon request after taking charge of the goods Additionally, Article 14.2 of the Hamburg Rules specifies that a B/L can be signed by someone authorized by the carrier, and a B/L signed by the ship's master is considered to be signed on behalf of the carrier.
24 Article 3.3 of the Hague-Visby Rules
In "Bii of lading, Multimodal Transport Documents, and Other Things," Andrew Tettenborn explores the complexities of transporting goods across various modes of transport in the 21st century The chapter, featured in the edited volume by Baris Soyer and Andrew Tettenborn, delves into the significance of bills of lading and multimodal transport documents, emphasizing their critical role in ensuring efficient and legal compliance in the carriage of goods by sea, land, and air This comprehensive examination highlights the evolving landscape of logistics and transport documentation, providing valuable insights for industry professionals.
According to Article 16, Rule 3 of the Hamburg Rules, a Bill of Lading (B/L) serves as prima facie evidence of the carrier's takeover or loading of goods, particularly when a "shipped" B/L is issued Similarly, Article III, Rule 4 of The Hague-Visby Rules states that the B/L is prima facie evidence of the carrier's receipt of the goods as described within the document.
In the context of cargo transportation, the term "prima facie" refers to the carrier's obligation to deliver the cargo to the consignee as outlined in the Bill of Lading (B/L) Once the carrier accepts the cargo and signs the B/L based on their inspection, the consignee can utilize the information on the B/L to substantiate any claims for damages incurred during transit.
The receiver has the right to file claims against the carrier for damages if there is a discrepancy in the amount of a specific commodity stated in the bill of lading compared to what is actually delivered.
A Bill of Lading (B/L) serves as a receipt issued by the carrier, confirming that goods have been loaded onto the vessel It typically includes essential details about the cargo, such as quantity, descriptions, shipping marks, ports of loading and discharge, vessel identification, and the date of loading or receipt.
1.1.2.2 Evidence of contract of carriage
According to Article 1.7 of the Hamburg Rules, a Bill of Lading (B/L) serves as a document that confirms a contract for sea carriage and the carrier's acceptance of goods for loading It obligates the carrier to deliver the goods upon the surrender of the document Additionally, if the document specifies that goods are to be delivered to a named individual, to order, or to bearer, it reinforces the carrier's commitment to this obligation.
The ongoing debate regarding the Bill of Lading (B/L) centers on whether it serves as evidence of the contractual terms agreed upon by the parties involved or as the actual contract itself In the author's opinion, although a detailed list of contractual terms is printed on the reverse side of each B/L, these terms do not represent a true contract of carriage.
The bill of lading (B/L) serves as a crucial document in the shipping process, acting as a receipt for goods and outlining the terms of their delivery While it is signed after a contract of carriage is established between the shipper and the carrier, it does not constitute the contract itself but rather serves as evidence of its existence and terms The B/L provides prima facie evidence of the conditions under which the goods were delivered to the carrier, but it is not definitive in cases of conflict with the actual contract of carriage Consequently, if a breach occurs, the shipper retains the right to seek remedies based on the provisions outlined in the contract of carriage, as illustrated in the case of Pyrene Co Ltd v Scindia.
Navigation Co Ltd, 33 “a fire tender was damaged while being loaded onto the ship before the B/L was granted, the shipper was entitled to compensation” 34
When a Bill of Lading (B/L) is transferred to a third party in good faith, its terms become a binding contract between the shipowner and the transferee, making it conclusive evidence of the contract of carriage This indicates that the B/L serves as the contract of carriage between the carrier and third-party receivers, known as subsequent endorsees or lawful holders This principle is outlined in the Carriage of Goods by Sea Act 1992 (COGSA 1992) of the United Kingdom.
The Bill of Lading (B/L) must be dated after the contract, as it is executed following the agreement between the shipper and carrier regarding the transportation method This distinction is crucial for maintaining clarity in shipping law.
31 Institute of Chartered Shipbrokers 2014, Shipping Law, London
33 Pyrene Co Ltd v Scindia Navigation Co Ltd [1954] 2 QB 402
34 Kelly T McGowan (2007), “The Dematerialisation of the Bii of lading”, Hibernian Law Journal (7), pp 68-
35 Glass, David, Chris Cashmore (1989), Introduction to the Law of Carriage of Goods, London: Sweet & Maxwell, pp 161
36 Wilson, John Furness (1993), Carriage of goods by sea, London: Pitman, pp 141; Benjamin, Judah Philip (1987), pp 899
Overview of electronic bill of lading
1.2.1 The emergence of electronic bill of lading
1.2.1.1 Considering the problem arising from “paper-based” document
The shipping industry is rapidly evolving, particularly in speed, navigation, and loading techniques, driven by technological advancements in shipbuilding However, the processes surrounding international trade documentation have not kept pace with these innovations.
According to Article 148.4 of the Vietnam Maritime Code 2015, a sea waybill serves as proof of receipt for goods as specified within the document and acts as evidence for the contract of carriage for maritime transport It is important to note that a sea waybill is classified as non-negotiable.
According to Scrutton and Eder, a straight bill of lading is issued to a specific consignee and is not intended for negotiation This definition highlights the nature of straight bills of lading as non-transferable documents in shipping transactions.
According to Treitel et al., there are two categories of paper bills of lading (B/L) The first type specifies the delivery of goods to a named consignee or their "order or assignee," indicating transferability In contrast, the second type allows for the goods to be delivered to "orders or assigns" without naming a consignee, making it a more flexible option The "order" B/L is classified as a negotiable bill, which requires the loading of cargo onto the vessel and delivery to the designated receiver mentioned in the B/L or their representative.
This paper Bill of Lading (B/L) is issued "in favor of the bearer, holder, or in blank" without designating a specific consignee The right to receive the goods is granted to the individual possessing the B/L, and the carrier is obligated to deliver the goods to the "bearer or holder," regardless of whether they are a named consignee or endorsee.
57 It has them same meaning with the term “good faith”
58 Dixon v Bovill [1856] 19(9) D (HL) handled remains archaic Paper documentation has various dangers and drawbacks in terms of money, arrivals, security, and the environment when used in international trade
More specifically, traditional-paper B/L must cope with a number of issues such as costly delays, incomplete, and inaccurate information that is included in the document, as well as fraudulent issuance
The bill of lading (B/L) process is often time-consuming in the fast-paced world of international trade, as goods frequently change hands multiple times This delay is primarily due to the speed of carriers, which often surpasses the communication efficiency of the B/L after all legal procedures are finalized As a result, the B/L struggles to keep pace with the rapid movement of goods, leading to significant delays in the shipping process.
When the Bill of Lading (B/L) is returned, the carrier must deliver the goods to the holder of the B/L Delays in the consignee receiving the B/L can lead to postponed release of goods at the destination port, incurring additional demurrage and storage charges This issue can be mitigated by using a Letter of Indemnity (LOI) provided to the carrier; however, if the LOI requires a bank's countersignature, it may result in increased fees and tied-up credit lines.
The slow transportation of the Bill of Lading (B/L) can hinder the carrier's ability to deliver goods promptly, leading to potential demurrage fees, storage charges, and additional delays at the discharge port This inefficiency makes the B/L a costly aspect of shipping logistics, as it must adhere to the schedule of the goods' carriage For instance, delays in the arrival of the B/L can significantly impact operations for shipping companies like Maersk.
61 Tseng, CC (2018), “Electronic Bills of Lading in the Light of the Rotterdam Rules 2009” in The European
Proceedings of Social & Behavioral Sciences, The 9th UUM International Legal Conference, Future Academy
62 LOI ensure that party suffer from loss ultimately will not suffer any loss if violating party breaks the law, by the specific measures set out in the LOI
In 2014, it was projected that a single shipment from East Africa to Europe could involve up to 30 individuals and organizations, resulting in approximately 200 conversations and transactions Consequently, the expenses related to printing and shipping paper documents are substantial A formal assessment by the United Nations Commission on International Trade Law (UNCITRAL) estimated that the annual cost of shipping documents amounts to around $420 billion.
Traditional paper bills of lading (B/L) are susceptible to fraud, as unauthorized individuals can easily duplicate them and present them to carriers for delivery This vulnerability allows consignors to potentially sell the same goods multiple times to different buyers, forge signatures, or alter the stated quantity of goods.
1.2.1.2 Recognizing the electronic bill of lading in the paperless era
Using electronic shipping documentation, particularly electronic bills of lading (e-B/L), significantly enhances the efficiency of the shipping process by reducing time, costs, and the potential for fraud The transmission of e-B/L allows for almost instantaneous delivery from the carrier to the bank and consignee, minimizing postal delays and only requiring the bank's processing time for authentication Additionally, the adoption of e-B/L decreases the need for letters of indemnity (LOI), streamlining the shipping documentation process further.
64 Charlotte, W., & Matthew, P (2018), E-bills of lading, Norton Rose Fullbright, https://www.nortonrosefulbright.com/en/knowledge/publications/b20094b6/e-bills-of-lading, accessed on 9 April
66 N C Hill (2016), Electronic Data Interchange: A definition and perspective, http://citeseerx.ist.psu.edu/viewdoc/download?doi.1.1.44.771&rep=rep1&type=pdf, accessed on 9 April 2023
67 UNCTAD (2001), “Electronic Commerce and International Transport Services” in Business Facilitation and
69 Tseng, CC (2018), supra note 36, pp 212
The electronic Bill of Lading (e-B/L) boasts a 90% safety rate in delivery, significantly reducing the need for multiple versions While it is still vulnerable to cybercrime, this streamlined approach simplifies the process of identifying the true owner of the Bill of Lading.
The adoption of electronic Bill of Lading (e-B/L) systems has significantly increased in recent years, overcoming the slow development that characterized its initial decade Key factors driving this trend include the acceptance of e-B/L by the International Group of P&I Clubs (IGP&I) and the Baltic and International Maritime Council, which has facilitated widespread adoption As of 2021, several platforms for e-B/L transfers, such as essDOCS, Bolero International, E-Title, edoxOnline, WAVE, TradeLens, and CargoX, have received IGP&I approval Additionally, companies in the transportation sector recognize that embracing commerce technology is essential for maintaining long-term competitiveness, prompting major industry players to adopt these systems and encourage their partners to follow suit.
The recent advancement of electronic Bills of Lading (e-B/L) through blockchain technology, distributed ledger systems, and smart contracts represents a significant technological innovation According to Koji's 2016 study, blockchain-based Bills of Lading offer enhanced benefits compared to traditional e-B/L systems, highlighting the potential for improved efficiency and security in shipping and logistics.
71 Aikens, R, Michael, B & Lord, R (2016), Bills of Lading (2nd edn), Informa Law from Routledge, London, supra note 23, pp 21
72 Doan Thi Mai Anh (2018), “Switching paper to electronic bills of lading: legal perspective and reform options for Vietnam”, pp 14
The International Group of P&I Clubs (IGP&I), consisting of 13 member clubs, provides maritime liability insurance that covers nearly 90% of the global ocean-going tonnage For more information, visit the official announcement on the approval of the TradeLens electronic bill of lading system for its members at GTReview.
75 https://cargox.io/blog/electronic-bill-lading-ebl/, accessed on 9 Apil 2023
Definition of electronic bill of lading
E-B/L is known as “electronic record” in Model Law on Electronic Transferable Records 2107 (MLETR) and Electronic Transactions Act 2010 - amended in 2020 (ETA) It is defined as the “information generated, 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” 141 This notion demonstates that e-B/L is simply created by
“information generated, communicated, received or stored through electronic means”
In Vietnam, the definition of a Bill of Lading (B/L) is outlined in Article 148.2 of the Maritime Code 2015, which states that a B/L serves as evidence of cargo receipt by the carrier, ownership of the cargo, and the contract of carriage by sea However, the code does not specifically define electronic Bills of Lading (e-BL), leading to ambiguity regarding the necessity of a written document for conducting online business This lack of clarity suggests that parties engaging in electronic transactions must explicitly express their intent to utilize e-BL in their contracts or related agreements.
141 Article 2 of MLETR, Article 16A of ETA
In Vietnam, the Law on Electronic Transactions 2005 (LET 2005) serves as the foundational legal framework for electronic transactions, encompassing data messages, Electronic Data Interchange (EDI), electronic contracts, and the concepts of digital signatures and their authentication This law’s relevance to electronic Bill of Lading (e-B/L) warrants further exploration Additionally, this report aims to examine the latest Draft of the amended Law on Electronic Transactions.
On February 6, 2023, adjustments were made following the Standing Committee of the National Assembly's conference on February 20, 2023, highlighting the need for a modern perspective However, the LET 2005 fails to define key terms such as "e-B/L" and "electronic transport," leaving a gap in clarity regarding these concepts.
E-Bills of Lading (e-B/L) consist of a series of electronic messages exchanged among carriers, shippers, and consignees, containing data entered into a computer and transmitted electronically Unlike traditional paper Bills of Lading (B/L), e-B/L cannot be signed in the same manner or issued in multiple originals Instead, the involved parties receive computerized information through electronic messaging A critical consideration is whether e-B/L can perform the same functions as paper B/L, a point highlighted by Florian Kuester in 2017.
The electronic Bill of Lading (e-B/L) serves as the digital counterpart to the traditional paper Bill of Lading, fulfilling essential functions such as acting as a receipt, providing evidence of the contract of carriage, and serving as a document of title Therefore, e-B/Ls are essentially data messages generated on a computer that facilitate communication between the carrier and other parties involved in the shipping process.
142 CASLAV, P (2004), Documents of title in carriage of goods by sea under english law: Legal nature and possible future directions, pp, 158
143 Sanelisiwe Princess Ngcobo (2017), A comparative study of the paper and electronic bill of lading under South
I don't know!
The legality of electronic bill of lading
The adoption of electronic bills of lading (e-B/L) is increasingly common in commercial maritime transport, offering convenience over traditional paper documents However, this shift faces significant technical and legal challenges, with research from the United Nations Conference on Trade and Development (UNCTAD) indicating that legal ambiguities are a greater barrier than costs or privacy concerns EDI and blockchain technologies do not fully replicate the nature or legal standing of paper documents For an e-B/L to be economically viable, it must fulfill the three key functions of a paper bill of lading, particularly the negotiability function that allows merchants to sell goods in transit This raises critical questions about the legal recognition and functional equivalence of e-B/L compared to their paper counterparts.
There is currently no specific definition of electronic Bill of Lading (e-B/L) in Vietnam's prevailing laws and the latest Digital Law on Electronic Transactions (DLET) This raises the question of whether e-B/L is officially recognized in the country As concluded in section 2.1, e-B/Ls are essentially data messages exchanged electronically among the carrier, shipper, and consignee, provided they fulfill the fundamental functions of traditional paper Bills of Lading Consequently, the recognition of e-B/L as an "electronic transaction" remains a pertinent issue in Vietnam.
145 Israel Woldekidan Haileyesus (2020), “Appraisal of the Ethiopia legal environment in light of its compatibility for the introduction of e-B/L”, Journal of International Trade, Logistics and Law, pp 75-89
146 UNCTAD, The use of Transport Documents in international Trade, (2003), UN Doc Sup No UNCTAD/SDTE/TLB/2003/3)
147 Ibid, pp.28 under LET 2005? 148 The answer is definitely yes because both e-B/L and the term
Transactions conducted through electronic means are characterized by the creation, transmission, reception, and storage of information in the form of data messages The legal validity of these data messages is upheld, as they cannot be invalidated solely due to their electronic format The Law on Electronic Transactions (LET) 2005 outlines various forms of data messages, including electronic data interchange, electronic documents, emails, telegrams, telegraphs, and facsimiles Consequently, it can be inferred that Vietnamese law acknowledges electronic bills of lading (e-B/L) under the provisions of LET 2005 by recognizing both "data messages" and "electronic transactions," despite the absence of a specific definition for e-B/L.
The lack of a clear definition and recognition of "transferable electronic records" significantly impacts the implementation of electronic transferable records (ETR), particularly regarding their role as documents of title This uncertainty is further compounded by Article 1 of the LET 2005, which states that the law does not apply to the issuance of bills of exchange and other negotiable instruments Consequently, this raises questions about whether electronic bills of lading (e-B/L) can be recognized as transferable documents of title, similar to traditional paper bills of lading and other valuable papers.
148 Article 4.6 of LET 2005: “An e-transaction means a transaction implemented by electronic means”
150 Article 4.12 of LET 2005: “A data message means information created, transmitted, received and stored by electronic means”
Under Australian law, electronic Bills of Lading (e-B/L) are fully recognized and legal, as established by the Sea-Carriage Documents Act This legislation explicitly allows for the use of computerized and electronic sea-carrying documents, as detailed in sections 4(1) and (2).
“(1) This Act applies, with necessary changes, to a sea-carriage document in the form of a data message in the same way as it applies to a written sea-carriage document
This Act extends its application to the communication of sea-carriage documents via data messages, ensuring that the same principles and regulations apply as those governing traditional communication methods for such documents.
This regulation supports the concept of "functional equivalence," meaning that transmitting a sea-carriage document through a data message holds the same legal significance as using traditional methods of communication.
Singapore has recently become the second country to implement the Model Law on Electronic Transferable Records (MLETR), marking a significant step towards the digitalization of trade The amendment not only clarifies the existing definition of "electronic records" but also introduces a new interpretation of Electronic Transferable Records (ETR) and related regulations in Part II(A) This change facilitates the use of electronic Bills of Lading (e-B/L), particularly emphasizing their role as documents of title Additionally, the Electronic Transactions Act (ETA) employs the "functional equivalent" approach to ensure the effective implementation of e-B/L while maintaining the integrity of existing governing laws.
The author suggests that as the LET 2005 undergoes amendments, Vietnam should consider adopting the Model Law on Electronic Transferable Records (MLETR), the Electronic Transactions Act (ETA), and existing international conventions on e-commerce This approach will help enhance the legal framework for electronic transport documents in the country.
“functional equivalent” strategy Art.4(d) of the CMI Rules on EDI refers to the so-called
153 section 4.1, 4.2 of Sea-Carriage Documents
On January 4, 2021, the country's current Electronic Transfer Agreement (ETA) underwent a revision to establish the principle of functional equivalence, which asserts that electronic documents hold the same legal weight as their paper counterparts Specifically, it states that an electronic receipt message is equivalent to a paper Bill of Lading (B/L) This approach aims to eliminate barriers to electronic documentation stemming from existing paper-based legal requirements without altering the substantive laws governing paper B/Ls The primary legal concerns regarding electronic Bill of Lading (e-B/L) regulations focus on ensuring that electronic documents meet the functional equivalents of traditional requirements, such as permanent information accessibility, preservation of original data, uniqueness, transferability, identification of the holder, and authentication of the issuer.
To fully recognize electronic bills of lading (e-B/L) and their three key functions, it is essential to enhance the definition of "electronic record" as outlined in the Electronic Transactions Act (ETA) and the Electronic Transactions Regulations (ETR) within the Legal Environment of Trade (LET) 2005 These definitions, along with relevant regulations, should be incorporated into a new chapter dedicated to ETR.
An "electronic record" refers to any record that is created, communicated, received, or stored through electronic means, encompassing all relevant information that is logically associated with it, regardless of whether it was generated at the same time An "ETR" (Electronic Transaction Record) is a specific type of electronic record that adheres to particular criteria, which will be outlined further in this article.
To effectively recognize electronic Bills of Lading (e-B/L) and their three core functions, it is essential to address specific requirements such as additional information in the Electronic Trade Repository (ETR), consent, and the stipulations surrounding writing, signatures, and the possession or transfer of possession While acknowledging the validity of e-B/L, it is crucial to ensure the practical application of these functions is also thoroughly examined This essay will focus on the requirements related to writing, signatures, and possession or transfer of possession.
155 Ibid transferable documents or instruments into consideration as it significantly contribute to the application of e-B/L with three equivalent functions as a paper e-B/L
To enhance the effectiveness of the LET 2005, it is essential to broaden its regulatory framework to encompass all aspects of social life It is proposed that the law explicitly states, "This Law governs electronic transactions for organizations and individuals, as well as other areas defined by law," thereby facilitating the adoption of electronic transaction systems (ETR) across various sectors.
Requirement for writing
According to Article 12 of LET 2005, when the law mandates that information must be in writing, a data message fulfills this requirement if the information is accessible and usable The stipulations for written communication in LET 2005 closely align with those outlined in the Electronic Transactions Act (ETA).
The author believes that the current approach to implementing the document title function for electronic Bills of Lading (e-B/L) is inefficient Identifying the lawful holder of an e-B/L is crucial, making the requirements for data messages to be considered as written versions highly significant Therefore, it is recommended that the confidence level established in LET 2005 and Article 10.2 of the First Draft of the Law on Electronic Transactions (first DLET) 156 serves as a valuable reference.
Firstly, it should be supplemented the reliability levels of data messages, in order from low to high, include:
Level 1 data messages lack any information regarding the sender or creator, making it impossible to verify or authenticate their integrity In Level 2, data messages may contain either no information or unauthenticated details about the sender or creator, further compromising the integrity of the message.
On April 6, 2023, a document detailing the assessment of the revised Education Law was published, emphasizing the importance of data authentication It specifies that Level 3 data messages must include verified information about the sender and ensure the integrity of the message Authentication can be achieved through independent electronic means such as telephone or email.
The data message is backed by a guarantee from the organization providing the electronic infrastructure, ensuring the integrity of the information from creation to storage, which is classified as having a level 3 confidence Additionally, level 4 data messages include authenticated information about the sender, with security verified by a secure electronic authentication facility from a licensed certificate service provider or authorized state agencies, as mandated by law.
Data messages utilize digital signatures provided by accredited certification service providers or are verified and stored by legitimate data message authentication service providers This process is acknowledged as possessing a confidence level of 4.
The DLET 157 emphasizes that when a legal requirement mandates information to be in writing, an Electronic Transaction Record (ETR) fulfills this requirement if the data message meets the standards of level 3 or 4 confidence.
Article 11.1 of the first DLET states that when the law mandates information to be presented in writing, a data message is deemed valid and equivalent to a paper document, provided it fulfills the criteria for level 3 or 4 confidence.
Requirement for signature
Most people consider a signature to be a crucial necessity for the authenticity of every document used in business and government operations 158 For BL, Johnson C
(1992) while acknowledging the value of a signature, also listing its four primary purposes:
“(1) To identify a piece as having originated from a particular person, bearing in mind that no two signatures are the same
(2) To show the agreement of the person signing to the contents of the document being signed
(3) To show that the person signing realizes that the document is formal and that he intends to be bound by it
(4) To show that the document is original” 159
Therefore, this demonstrates how crucial a signature is as a matter of law for a document’s admittance and legitimacy Coming to signature aspect, Article 24.1 LET
To meet legal requirements for a signed document, an e-signature must fulfill specific criteria: it must identify the signatory and demonstrate their approval of the data message's content, and the method used to create the e-signature must be reliable and suitable for the intended purpose of the message.
158 W H van Boom (1997), “Certain Legal Aspects of Electronic Bills of Lading”, European Transport Law, 32
159 Johnson C (1992), “Electronic Data Interchange and Negotiable Instruments - a preliminary Review of some Legal Issues”, International Review of Law Computers and Technology, 6 (1)
The legal framework for signature equivalency closely aligns with the Electronic Transactions Act (ETA), yet significant shortcomings exist in the requirement for signatures, particularly regarding the lack of transparency in defining a "reliable method." Under the Model Law on Electronic Transferable Records (MLETR), a reliable method must be deemed appropriate for fulfilling its intended function, taking into account all relevant circumstances.
“(i) any operational rules that are relevant to the assessment of reliability;
(ii) the assurance of data integrity;
(iii) the ability to prevent unauthorized access to and use of the system;
(iv) the security of hardware and software;
(v) the regularity and extent of audit by an independent body;
(vi) the existence of a declaration by a supervisory body, an accreditation body or a voluntary scheme, regarding the reliability of the method; or
(vii) any applicable industry standard; or
(b) proven in fact to have fulfilled the function by itself or together with any further evidence” 161
This explanation not only fails to clarify the signature requirement but also complicates the identification of how to use a "reliable method" to determine the validity of an e-signature.
The latest DLET establishes clear criteria regarding the legal significance of electronic signatures, enhancing security from the writer's perspective According to the guidelines, when the law mandates that a document be signed by an individual, this requirement is deemed satisfied if the data message is signed by a private individual.
Article 16G of the Electronic Transactions Act (ETA) states that when a law mandates a signature or outlines consequences for an unsigned transferable document, this requirement is satisfied for an Electronic Transferable Record (ETR) if a dependable method is employed.
(a) to identify that person; and
(b) to indicate that person’s intention in respect of the information contained in the ETR”
Article 12 of the MLETR emphasizes the importance of secure electronic signatures, ensuring protection for individuals, agencies, and organizations While private electronic signatures and digital signatures offer more specific regulations compared to the ETA and LET standards, their requirements lack sufficient rigor to effectively control the integrity and security of the content associated with these signatures.
The EU Regulation No 910/2014, known as the Electronic Identification and Trust Services (eIDAS), serves as a guideline for Vietnam concerning electronic signatures It states that when a legal requirement mandates a person's signature or outlines specific consequences for the absence of a signature on a transferable document, this requirement is fulfilled by an electronic signature if it meets the criteria for a qualified electronic signature Notably, a qualified electronic signature represents the highest level of recognition in this context.
163 Article 24.2 of the latest DLET:
A private electronic signature is defined by several key criteria: it verifies the identity of the signer and their acceptance of the data message, ensures that the signature creation data is linked solely to the approved message content, allows only the signer to control the signature creation data at the time of signing, and enables the validity of the signature to be verified based on mutually agreed conditions between the parties involved.
164 Article 24.4 of the latest DLET:
A digital signature is an electronic signature that verifies the identity of the signer and their acceptance of a data message through electronic confirmation via public key infrastructure It ensures that the signature creation data is uniquely linked to the approved content and remains under the signer's control at the time of signing Any alterations to the data messages post-signing are detectable For official use, a digital signature must be backed by a certificate from a recognized digital signature authentication service, while public digital signatures require certification from a public digital signature provider Additionally, the methods for creating digital signatures must guarantee the security of the data used, ensure that it is utilized only once, and prevent any unauthorized access or modifications to the data being signed.
The eIDAS regulation, effective from July 1st, 2016, offers a transformative opportunity for businesses in the EU to enhance their operations through electronic signature solutions, streamlining processes and reducing reliance on paper This initiative is applicable to all companies within the EU, regardless of their geographical reach, and encompasses three types of electronic signatures: electronic signatures, advanced electronic signatures, and qualified electronic signatures.
Specifically, the regulations of signature should include:
“1 Electronic signature means data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign;
2 An advanced electronic signature shall meet the following requirements: (a) it is uniquely linked to the signatory; (b) it is capable of identifying the signatory; (c) it is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control; and (d) it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable;
3 Qualified electronic signature’ means an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures”.
Requirement for possession or transfer of possession
Transferrable documents fundamentally represent the rights and duties of a transaction, encapsulating these rights in a tangible form Paper-based transferrable documents are characterized by their physical possession, making a paper Bill of Lading (B/L) a singular, original document that reflects the associated rights and obligations This unique nature ensures that the rights and duties embodied in the paper B/L are distinctly maintained.
169 Zvonimir Š (2016) “The Notion of Electronic Transferable Records”, Intereulaweast, III (2)
The negotiation or assignment of rights associated with a bill of lading necessitates the physical transfer of the original document among all parties involved In the case of electronic bills of lading (e-B/L), it is essential to implement stricter legal and technical measures to guarantee the document's uniqueness, as e-B/Ls can be replicated, potentially creating duplicates that closely resemble the original.
There are two primary methods for ensuring the uniqueness of an Electronic Transport Receipt (ETR) The first method utilizes a central registry managed by a trusted entity, requiring all transaction participants to be registered users; this necessitates the use of a physical Bill of Lading (B/L) if a non-member joins the transaction The second method, enabled by blockchain technology, allows for the circulation of a token over a decentralized network to ensure ETR uniqueness While both systems are technically viable, their effectiveness hinges on sufficient legal support to uphold the uniqueness of electronic Bills of Lading (e-B/L) and prevent unauthorized replication of ETRs.
The LET 2005 lacks specific regulations on uniqueness, only addressing electronic certificates with signatures In contrast, the ETA states that if a law mandates the transfer of possession of a transferable document or instrument, certain consequences arise if that possession is not transferred.
171 Zvonimir Š (2016) “The Notion of Electronic Transferable Records”, Intereulaweast, III (2)
172 Koji T (2016), “Block Chain Technology and Electronic Bills of Lading”, Journal of International Maritime
According to Article 4.1 of LET 2005, an e-certificate is a data message issued by an e-signature certification service provider to verify the identity of the e-signature signer, whether it be an agency, organization, or individual This requirement is fulfilled through the transfer of control over the electronic bill of lading (e-B/L) to another party, indicating that controlling an e-B/L is equivalent to possessing a traditional bill of lading (B/L) Furthermore, the Electronic Transactions Act (ETA) employs the term "reliable method" to similarly establish the control of e-B/Ls.
In jurisdictions where the rule of law mandates the possession of a transferable document or instrument, or outlines specific consequences for its absence, this requirement is satisfied for an Electronic Transferable Record (ETR) if a dependable method is employed to confirm that an individual has exclusive control over the ETR.
(b) to identify that person as the person in control” 177
In Vietnam, the author proposes utilizing the "electronic certificate" mentioned in the initial DLET as an alternative to the term "reliable method." Consequently, the criteria for possession or transfer of possession should be revised accordingly.
A rule of law that mandates the possession of a transferable document or instrument, or outlines specific consequences for not having one, is satisfied by the use of an electronic certificate in relation to an Electronic Transferable Record (ETR).
(a) to establish exclusive control of that ETR by a person; and
(b) to identify that person as the person in control
In cases where legal rules mandate the transfer of possession of a transferable document or instrument, or stipulate specific outcomes for non-transfer of such items, compliance is achieved for an Electronic Transferable Record (ETR) by transferring control of the ETR to another individual as outlined in subsection (1).
178 Section 3 Chapter 2 of first DLET
Requirement for integrity
The 2005 LET and the latest DLET establish that the integrity of a data message is maintained when its content remains unchanged, aside from alterations in appearance that occur during transmission, storage, or display However, both regulations fail to address certain aspects related to this definition.
“authorized change” as a remain unchanged data message mentioned in ETA is the biggest inadequacies
Article 16H of the ETA states that the integrity of an electronic record is determined by whether the information, including any authorized changes, remains complete and unaltered from its creation until it is no longer valid The writer suggests that this requirement for integrity should be revised to emphasize the importance of maintaining the original information intact, aside from normal changes that occur during communication, storage, or display.
Article 16L of the ETA outlines that when a legal rule necessitates the amendment of a transferable document or instrument, this requirement is satisfied for an electronic transferable record (ETR) if a reliable method is employed to amend the information, clearly identifying the changes made It is recommended that the term "reliable method" be defined as the use of a qualified electronic signature combined with an electronic time stamp, as introduced in the latest DLET.
179 Article 13.1 of LET 2005, Article 12.1 of latest DLET
The requirement for amending a transferable document or instrument should be revised to state that if a rule of law mandates such an amendment or outlines specific consequences for failing to do so, this requirement is fulfilled for an Electronic Transfer Record (ETR) when a qualified electronic signature, accompanied by an electronic time stamp, is utilized to amend any information within the ETR.
Requirement for transferable documents or instruments
In Vietnam, there is currently no established definition or regulations concerning Electronic Transfer Records (ETR) However, the Electronic Transactions Act (ETA) outlines the requirements for an electronic record to qualify as a transferable document or instrument, also referred to as ETR.
To fulfill the legal requirement for a transferable document or instrument, an electronic record must include all necessary information typically found in such documents and utilize a reliable method for its transmission.
(i) To identify that electronic record as the electronic transferable record;
(ii) To render that electronic record capable of being subject to control from its creation until it ceases to have any effect or validity; and
(iii) To retain the integrity of that electronic record
2 The criterion for assessing integrity shall be whether the information contained in the electronic transferable record, including any authorized change that arises
“1 Timestamp allocation service is a service to attach time information to data messages
2 The timestamp is generated as a digital signature
3 The time attached to the data message is the time that the timestamp issuer receives the data message and is authenticated by the timestamp issuer
4 Time sources of time stamp service providers must comply with the provisions of the law on national standard time sources
5 Specialized service providers of digital signature authentication services providing timestamp issuance services in official service activities” from its creation until it ceases to have any effect or validity, has remained complete and unaltered apart from any change which arises in the normal course of communication, storage and display”
This regulation should be amended with the following criteria:
“Where the law requires a transferable document or instrument, that requirement is met by an electronic record if:
(a) the electronic record contains the information that would be required to be contained in the transferable document or instrument;
(b) the electronic record satisfies the requirement for writing;
(c) the electronic record satisfies the requirement for signature;
(d) the electronic record satisfies the requirement for possession or transfer of possession; and
(e) the electronic record satisfies the requirement for integrity.”
Chapter 2 analyzes Vietnamese legal regulations concerning the recognition of electronic bills of lading, referencing key frameworks such as the Model Law on Electronic Transferable Records 2017, the amended Electronic Transactions Act 2010, and EU Regulation No 910/2014 on Electronic Identification and Trust Services The author evaluates the alignment of foreign legal standards with Vietnam's current practices regarding electronic bills of lading and proposes necessary amendments to ensure full legal recognition through a functional equivalent approach This effort aims to enhance Vietnam's legislation on electronic bills of lading, particularly as the amendment of the 2005 Law on Electronic Transactions is being drafted Ultimately, the thesis seeks to inspire new research and development in the application of electronic bills of lading within domestic and international shipping, thereby contributing to the advancement of Vietnam's economy.
In today's rapidly evolving maritime and technological landscape, the recognition of electronic bills of lading has become essential This thesis, titled “Regulations of Electronic Bill of Lading in Vietnam - Inadequacies and Recommendations for Vietnam,” aims to address the legal challenges surrounding electronic bills of lading in Vietnam and offers recommendations for their full legal recognition The findings of the thesis highlight significant results that contribute to the understanding and implementation of electronic documentation in the Vietnamese shipping industry.
Firstly, get an overview and analysis of the legal provisions of electronic bill of lading in Vietnam under Vietnam Maritime Code 2015, Law on Electronic Transaction
In 2005, the initial Draft Law on Electronic Transactions was introduced, followed by amendments and a revised draft on February 6, 2023, which was discussed at the Standing Committee of the National Assembly on February 20, 2023 This process has highlighted certain shortcomings in the regulations regarding the full recognition of electronic bills of lading (e-B/L), particularly concerning their function as legal documents of title.
Secondly, by linking and evaluating foreign legal regulations, international conventions and model laws, the author has made recommendations suitable to the current situation of Vietnam regulations
In the future, the legal regulations related to the synchronization of stakeholders and authorities for the use of electronic bill of lading is also a matter of concern
1 Draft of Law on Electronic Transactions dated 6 February 2023 which was adjusted after the conference of the Standing Committee of the National Assembly dated 20 February 2023
2 First Draft Law on Electronic Transaction (amended)
1 Carriage of Goods by Sea Act 1992 of United Kingdom
2 Comité Maritime International Rules for Electronic Bills of Lading 1990
3 Electronic Transactions Act 2010 (amended in 2020)
5 Hague Rules 1924, as amended by the “Protocol to amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading”
6 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading 1924
7 The Sea-Carriage Documents Act of Australian
8 United Nations Convention on the Carriage of Goods by Sea 1978
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