E-COMMERCE AND INTERNATIONAL TRANSPORT: COLOMBIAN AND AIR CARGO PERSPECTIVE

1. E-COMMERCE AND INTERNATIONAL TRANSPORT: COLOMBIAN AND AIR CARGO PERSPECTIVE Presentation made to the Expert meeting on e-commerce and international transport services Geneva, september 26 – 28 BY: JUAN CARLOS SALAZAR

2. BY: JUAN CARLOS SALAZAR

3. It is expected that by year 2002, nearly 2% of Colombian population is connected to internet BY: JUAN CARLOS SALAZAR

4. NAME NUMBER OF DOMAINS REGISTRED TO DATE Total com 6773 org 558 edu 498 gov 400 net 274 mil 37 nom 31 otros 29 TOTAL 8600 from: www.nic.co BY: JUAN CARLOS SALAZAR

5. Introduction • Efforts to improve connectivity of Colombia: National Agenda for Connectivity • Legal Framework for E-commerce in Colombia • Experience and main issues on E-commerce and Transportation services • E-Commerce in international air cargo transportation services BY: JUAN CARLOS SALAZAR

6. NATIONAL AGENDA FOR CONNECTIVITY • Mass Access to Infrastructure • Education • Private Sector Online • Incentives to Promote E-Business Investments • Content Development • Government Online BY: JUAN CARLOS SALAZAR

7. LEGAL FRAMEWORK FOR E-COMMERCE (1) • DECEVAL experience • Law 222 of 1995 (Sharehorlders meetings) • Dec. 2150 of 1995 (Sending electronic information to governmental entities ) • Law 223 of 1995 • Decreto 1094 de 1996 (electronic Invoice) • Law 527 of 1999 • Decisions C-662/00 and C-831/01 • Decree 1747 de 2000 • Res. 26930 de la SIC BY: JUAN CARLOS SALAZAR

8. LEGAL FRAMEWORK FOR E-COMMERCE (2) • Colombia participates of the “Civil law” tradition • Based on written law • Most contracts forms by the mere agreement of will • Good Faith principle in place, but Articles of Code of Procedure developed cultural barriers: most of the time contracts are written BY: JUAN CARLOS SALAZAR

9. LAW 527 of 1999 • Part I and Part II basically adopted UNCITRAL model law, including those related to transportation services • Part III was mainly taken from Utah legislation and regulates E-signatures, E-certificates and certification entities issues BY: JUAN CARLOS SALAZAR

10. LAW 527: APPLICABILITY • Broader than UNCRITRAL model law: “This law is applicable to any kind of information in the form of data message” • Decision from Constitutional Court (C-662/00 of June 8, 2000 and C-831/01 of August 8, 2001) declared constitutionality of these provisions BY: JUAN CARLOS SALAZAR

11. LAW 527: E-Signature “ It is a numeric value added to an e-message...” Art. 2 Ley 527 1999 BY: JUAN CARLOS SALAZAR

12. DECREE 1747 OF 2000 • Chapter I. General Aspects • Chapter II. Certificación entities and digital Certificates. • Chapter III. Powers of Superintendencia de Industria y Comercio. ***UNTIL TODAY ONLY ONE AUTHORIZED CERTIFICATION COMPANY*** BY: JUAN CARLOS SALAZAR

13. E-COMMERCE AND TRANSPORT SERVICES • Customs: implementation of «SIDUNEA» and now «SIGLO XXI» programs to «facilitate» • PROEXPORT: promotion of exports and logistics webpage: www.proexport.gov.co/logistica • Main Colombian ports offer services online • Main Colombian airlines offer services online BY: JUAN CARLOS SALAZAR

14. PROBLEMS IDENTIFIED AND CONCLUSIONS • Good legislation in place BUT • Lack of infraestructure • Cultural problem: non-confidence in e-documents • Strict approach from some crucial authorities: Customs (DIAN) and Consumer and antitrust authority (SIC) may represent a barrier to e-commerce BY: JUAN CARLOS SALAZAR

15. INTERNATIONAL AIR TRANSPORT & E-COMMERCE Changes Introduced to Warsaw System by Montreal Protocol No. 4 (MP4) BY: JUAN CARLOS SALAZAR

16. MP4 Changes to Warsaw Convention • Carrier must deliver an air waybill (Art. 5. 1) • But with consent of consignor carrier may substitute any other means that preserves a record of the carriage (Art. 5 2.) • Consignor can require carrier to deliver receipt (Art. 5 2.) • Receipt must identify consignment, and permit access to therecord (Art. 5 2.) BY: JUAN CARLOS SALAZAR

17. MP4 Issues - Consent • “Other means” allows use of e-commerce procedures • Provided consignor consents • Art. 5 MP4 does not identify conduct that can be basis of consent in electronic environment • Consent issues governed by national Law on Electronic Commerce BY: JUAN CARLOS SALAZAR

18. UNCITRAL MODEL LAW ON E-COMMERCE • Provides an effective legal platform for electronic commercial transactions • Supplements provisions of MP4 BY: JUAN CARLOS SALAZAR

19. UNCITRAL MODEL LAW • Legal Equivalence of electronic documents; • Electronic signatures; • Retention of electronic records; and Submission of Electronic documents to interested parties, and • Principles that apply to Electronic trading. BY: JUAN CARLOS SALAZAR

20. Principle of Consent • UNCITRAL model law does not address the issue of consent or “significant assent”. • In the meantime this should be solved either contractually or by applying national principles of law • General principle in Colombia: No one is required to use or accept information in electronic form, but a person's consent to do so may be inferred from a course of conduct and Electronic trading practices • Same principle should apply in determining consent under MP4 BY: JUAN CARLOS SALAZAR

21. Consent may beimplied from conduct • By engaging in electronic trading, e.g. EDI messages, or data entered “on-screen” in carrier’s Web form • Consignment data must be accessible , either by consignor retrieving data from secure Website or receiving e-mail confirmation from Website or carrier • See Articles 11 & 12 of UNCITRAL model law BY: JUAN CARLOS SALAZAR

22. Electronic Record be Usable by Party • Electronic records must be “accessible” and capable of being retained by other party for use. • Does MP4 require that “accessible” include ability to use record? Or is ability to view record all that is required? • Requirement that electronic record be usable is commercially sensible BY: JUAN CARLOS SALAZAR

23. Requirement of Receipt • MP4 Article 5 requirement that Receipt be delivered: must air carrier provide physical document to consignor? Paradox… • UNCITRAL permits use of electronic equivalent of paper document • Signature incorporated in machine readable document format is functional equivalent of receipt BY: JUAN CARLOS SALAZAR

24. Other Issues: Terms and Conditions of Carriage • Article 11 - Air waybill or receipt is prima facie evidence of ... the conditions of carriage mentioned therein. • Unlike waybill or receipt, an “Electronic Record” is not evidence of conditions • Does have Air carrier to use paper waybill or receipt to benefit from presumption in Article 11? BY: JUAN CARLOS SALAZAR

25. Terms and Conditions(2) • Model Law covers use of electronic messages for transportation • Permissible use includes: notifying a person of terms and conditions of a contract of carriage of goods • Despite omission in MP4 language, air carrier’s conditions govern carriage BY: JUAN CARLOS SALAZAR

26. MP4 Reduces Formalities of Transport “Documentation” Article 5 2. - Any other means which would preserve a record of the carriage to be performed may, with the consent of the consignor, be substituted for the delivery of an air waybill. Article 10 - Non-compliance with the provisions of Articles 5 to 8 shall not affect the existence or the validity of the contract of carriage, . . which remains subject to . . . rules of this Convention including those relating to limitation of liability. BY: JUAN CARLOS SALAZAR