Quest for Harmonization to Implement Electronic Bills of Lading: An International Perspective

Abstract

The lack of legislation on electronic bills of lading is an important existing lacuna in the prevailing legal regimes on the international carriage of goods by sea. The Hague/Hague-Visby Rules are increasingly becoming unable to take the modern realities of shipping into consideration and attempts at creating new conventions in this area of law have failed to gain widespread adherence. As of yet, most jurisdictions consequently do not legally recognize bills of lading in electronic form. The study goes to the root of the problem by making an in-depth examination of bills of lading and the functions that they serve in international trade. Through this examination, the picture becomes clear that the fundamentally differing views on property law found in domestic legislations is at the heart of the matter. The study finds that legislative work across multiple jurisdictions is thus indeed necessary to allow for the functions of paper bills of lading to be replicated electronically. Hence, this thesis explores different methods of achieving universally harmonized laws that would remove this barrier to the widespread implementation of electronic bills of lading in international shipping. It is thereby noted that there is a need for new approaches to achieve streamlined laws than what has previously been employed. The static nature of conventions makes them prone to quickly become outdated. This, coupled with their tendency of failing to attract sufficient support makes them too blunt of an instrument in the pursuit of finding wide legal recognition of electronic bills of lading.

The thesis arrives at the conclusion that more focused and flexible methods of harmonization should be employed instead. Model laws are found to be a good example of such a method, and they are accordingly seen as a better and more feasible way of establishing technological neutrality. An additional finding is that the most successful prior harmonization attempts have been where the industry itself has been allowed to have a great amount of say. This has consequently led to the conclusion that a hands-off approach by individual states is to be preferred. Whatever legislative method is chosen should chiefly be aimed at the wide recognition of electronic bills of lading as a legal equivalent to paper bills of lading. It is the view held by this study that soft law in the form of industry standards produced by the third-party service providers and other stakeholders in the shipping industry will subsequently develop to regulate the finer practical aspects once this goal has been reached.

The study takes the most recent developments on the digitization of international shipping into account by relying on the most up to date material covering the topic. Attendance at the recently held UNCITRAL Webinar on "International experiences with the dematerialization of negotiable transport documents" has for example allowed for a firsthand view on the progress towards digitization from the perspective of various stakeholders in the transport industry. With technical facilitators such as blockchain technology being all but ready to be employed commercially, these stakeholder insights all point in one direction: the time for legal recognition of electronic bills of lading is now.