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A Study On The Legal Issues Of Electronic Bills Of Lading

Posted on:2006-12-14Degree:DoctorType:Dissertation
Country:ChinaCandidate:Z S XiangFull Text:PDF
GTID:1116360182465689Subject:International Law
Abstract/Summary:PDF Full Text Request
The modern shipping industry had experienced two revolutions. The first revolution was caused by the invention of the steam engine and its adaptation to the propulsion of ships in the early 19th century, and the second by the invention of the container as medium for the transportation of goods in the 1960's. The third revolution of the shipping industry is currently in progress in the form of computerisation, Electronic Commerce and the change from paper documentation to electronic documentation of the carriage of goods by sea. It is just in this background that electronic bills of lading is coming into being.With comparative, logical and positive approaches, this dissertation tries to make a comprehensive and profound study of the legal issues of EBL.This dissertation consists of 8 chapters, with about 243,000 Chinese words. This dissertation is divided into three parts, respectively dealing with the legal issues of dematerialisation of BL, the legal issues of EBL, and the use of EBL in China and the legal issues related with this use.The first part includes the first chapter and the second chapter. The first chapter stresses the historical backgroung of the dematerialisation of BL. This chapter has introduced the historical evolvement of BL, and then has analysed the challenges the traditional BL is facing and the fast development of the modern information technologies. In this chapter, the author also brought about his personal opinions about the relationship between the dematerialisation of BL and EBL.The second chapter mainly studied the formalism of BL and the dematerialisation of BL. The formlism of BL requires BL to be in writing and authenticated with handwritten signature or the deriving forms of handwritten signature. And then this chapter elaborated the meanings of the dematerialisation of BL and its approaches. Finally this chapter researched the relationship between writing requirements and the dematerialisation of BL, the relationship between signature requirements and the dematerialisation of BL, the relationship between "original" requirements and the dematerialisation of BL and the relationship between electronic evidence and the dematerialisation of BL.The second part includes the third chapter, the fourth chapter, the fifth chapter, the sixth chapter and the seventh chapter.The third chapter mainly elaborated the meanings of EBL, its legal character, kinds, advantages and the switch between BL and EBL. The EBL has a narrower sense and a broader sense. The narrower sense has a idealist understanding of EBL. According to the narrower sense, EBL should have the following three characteristics: the first, EBL should have all of the functions of traditional BL; the second, EBL should own the same operating system as traditional BL, i.e., the carrier or a third party should not interfere with the negotiating process; and the third, EBLshould have been recognised by the exiting maritime laws. According to the broader sense, any electronic document or electronic system which partly or entirely realises the functions of traditional BL in the electronic optic or similar means could be regarded as EBL. This dissertation adopted the broader sense.Because the legal foundations of the implementation EBL are different (it may be maritime law, Electronic Commerce law, or a contract between the partys), the legal nature of EBL is not certain.The fourth chapter studied the implementation of EBL, its contents including the implementation model and methods, the conditions the implementation of EBL should satisfies, the indirect implementation, the contractual implementation and the legal implementation of EBL.The indirect approach means certain legal measures being adopted to encourage the use of the electronic alternative documents of negotiable BL. INCOTERMS 2000 and UCP500 are all typical representation of indirect implementation of EBL.The direct approach means the use of different methods to replicate the functions of BL in electronic environment. The direct approach also includes contractual approach and legal approach.The fifth chapter researched the legal acts of EBL and its functions.The function of EBL as cargo receipts and the evidence of transport contract can be realised very easily, because it only deals with the transmission of information, but not rights.As far as security is concerned, eUCP will greatly facilitate electronic presentation in letter of credit transactions. At the same time, EBL has been provided with the feasibility and also satisfied the conditions for taking security.The traditional negotiability is a concept system bases on merger rule. According to merger rule, any rights coming from a document of title will be unlimitedly represented by a tangible document, or to say in another words, the rights representedby a document of title will be mergered into that document. The rights will be transferred with the transfer of the tangible document itself. The merger rule is based on the inseparability of paper and the information written on that paper, but in electronic environment this inseparability disappeared. So a new way have to be found to realise the electronic negotiability. This new way is just register system.As far as the sue right is concerned, there are two ways to solve this question, one being the transfer of transport contract, the other being the novation of transport contract.The sixth chapter mainly introduced the EBL system, including the general situation of Bolero, the contractual structure of Bolero, the technical structure of Bolero, the legal theory of Bolero BL, and finally the evaluation of the Bolero system.The seventh chapter maked a detailed research about the conflict-of-laws issues of EBL.As far as the general jurisdition of EBL is concerned, article 21 of Hambourg Rules is still applicable. But as far the contractual jurisdiction, its solvement depends on the classification of EBL. If EBL is implemented according to the contract of the parties, then the mandatory rules such as Hague Rules will not be applicable to EBL. But if the EBL is implemented on the base of maritime law or Electronic Commerce law, then mandatory rules will also applicable to EBL.When talking about the applicable law of contractual relationships of EBL, mandatory rules will also have to be dealt with. Besides, party autonomy and the principle of the most significant relationship will also be applicable.As far as the applicable law of real rights relationships of EBL, besides the laws of the destination port and loading port, the law of the country where the register center is located should also be advised.The final part, also the eighth chapter of this dissertation, mainly introduced the use of EDI and EBL in China, and then a research about the legal issues the use of EBL in China would face has been made respectively from the perspective of Electronic Commerce Law and maritime law. The author proposed that it was not appropriate to amend chines mairitime law to recognise EBL in the near future.
Keywords/Search Tags:Dematerialisation of Bills of Lading, Electronic Bills of Lading, Electronic commerce, Electronic evidence, Jurisdiction, Application of law
PDF Full Text Request
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