Electronic Transactions Act amended on 19 March 2021 to include electronic transferable records
22 March 2021
Pursuant to the Electronic Transactions (Amendment) Act 2021 (Commencement) Notification 2021, the Electronic Transactions (Amendment) Act 2021 (“Amendment Act”), which was gazetted on 12 March 2021, came into operation on 19 March 2021. The Amendment Act amends the Electronic Transactions Act (“ETA”) to adopt with modifications the UNCITRAL Model Law on Electronic Transferable Records adopted by the United Nations Commission on International Trade Law (UNCITRAL) on 13 July 2017 to enable the creation and use, domestically and internationally, of electronic forms of transferable documents or instruments, otherwise known as electronic transferable records. These transferable documents or instruments are used extensively in international trade, in industries such as shipping, logistics and finance.
The amended ETA enables the creation and use of electronic bills of lading (“eBLs”) that are legally equivalent to paper-based bills of lading. With eBLs, the transmission of documents will be instantaneous, and time spent on verification and rectifying errors will be reduced. With digital authentication technologies such as digital signatures, centralised ledgers, or blockchain, eBLs also improve security against forgeries. Compared to the use of paper-based bills of lading, the adoption of eBLs will enable the shipping industry to benefit from faster transactions, cost savings (e.g. reduced administrative cost of cargo holding and document processing), and lowered fraud risks (through the use of digital authentication systems).
Under the amended ETA, the provisions supporting the legal enforceability of electronic records and signatures now apply to (i) transferable documents or instruments, such as bills of exchange, promissory notes, and bills of lading, and (ii) other documents that were previously excluded from the ETA, such as consignment notes and warehouse receipts.
Further, section 13 of the ETA has been amended to achieve consistency with Article 10 of the United Nations Convention on the Use of Electronic Communications in International Contracts (“ECC”). Section 13(4) provides that an electronic communication is presumed to be capable of being retrieved by the addressee when it reaches the electronic address of the addressee for the purposes of section 13(3). Section 13(3) provides the rule for determining the time of receipt of an electronic communication at an electronic address in a case where the electronic address has not been designated by the addressee. However, in accordance with Article 10 of the ECC, the presumption should also apply in determining the time of receipt of an electronic communication at an electronic address in a case where the electronic address has been designated by the addressee, which is the subject of section 13(2). Section 13(4) has been amended to be consistent with Article 10 of the ECC.
The Amendment Act also makes consequential and related amendments to the Bills of Lading Act and the Contracts (Rights of Third Parties) Act.
By way of background, the Electronic Transactions (Amendment) Bill (“Bill”) was passed in Parliament on 1 February 2021 following the Bill’s introduction on 4 January 2021. We covered this development in “Electronic Transactions (Amendment) Bill passed to provide for electronic transferable records and electronisation of negotiable instruments, documents of title and bills of lading”.