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					                                                                  CEFACT/2010/IT012
                                                                        2 June 2010




                               UNITED NATIONS
            CENTRE FOR TRADE FACILITATION AND ELECTRONIC BUSINESS
                                (UN/CEFACT)




      INTERNATIONAL TRADE PROCEDURES WORKING GROUP (ITPWG) - TBG15




                                       Draft
                                Recommendation 35
      Establishing a Legal Framework for an International Trade Single Window

     Comments received during intersessionnal approval November 2009- May 2010




SOURCE:   Chairman, International Trade Procedures Working Group (TBG15)
STATUS:   Comment Log – consolidation of Open Development Process Step 5
ACTION:    For Intersessional approval
                 COMMENT LOG RECOMMENDATION 35

Recommendation 35 has been circulated to the Heads of Delegation of UN/CEFACT after the
plenary in November 2009 for intersessionnal approval. During that period the delegation of
the Russian Federation asked the International Trade Procedures Working Group, TBG 15, to
submit the proposed Recommendation to UNCITRAL for their specific review. The
UNCITRAL secretariat presented their comments in May 2010. The vast majority of
UNCITRAL‟s comments helps TBG 15 to present an even better text. Also the UNECE
secretariat has made comments and suggestions on the draft Recommendation. TBG 15 has
therefore decided to submit the recommendation for a renewed round of intersessional
approval in UN/CEFACT. It is our sincere belief that the present version answers to a demand
among the countries undertaking to establish a Single Window and we hope that the present
comment log will explain how comments have been handled and were in the recommendation
changes can be found.
All responses to the invitation for comments on the Public Draft must be recorded in a Comment Log document
     in accordance with ODP rules. Any person, business entity, economic operator, government (including
     authorities and agencies) or other organisation can submit a comment on any CEFACT artefact at any time.
     The Working Group responsible for the artefact shall ensure each comment is logged. And include the
     following fields:
          (a) Comment Submission Date (in ISO 8601 format YYYY-MM-DD)
          (b) Comment-Period Identifier: identifier associated with a comment-period begin date, comment-
               period end date, and ODP step
          (c) Submitter‟s Name
          (d) Submitter‟s Email Address (all lower case)
          (e) Submitter‟s Delegation (if applicable; ISO country code)
          (f) Exact Comment: submission text, exactly as submitted, including any clarifying comments
               provided by the submitter
          (g) Edited Comment: Exact Comment edited to more clearly express the submitter‟s intent (default is
               Exact Comment)
          (h) Artefact: artefact name and version to which the comments applies
          (i) Reference: intra-artefact reference information to which the comment applies (e.g., line number or
               range, figure number, general comment on entire artefact or section)
          (j) Comment Processing State: See the section below for details.
          (k) Notes: an explanation of the comment processing state (required for comments in Comment
               Processing State M, R, D, N, and W)
          (l) Other fields specified by the PG
          (m) Other fields specified by the working group
The Comment Processing State field shall contain one of the following values:
          Z: The comment was received at a time other than during a comment period. The comment is queued
          for processing.
          Q: The comment was received during or before a comment period, or was a W-state comment assigned
          to a Q state, and has not been processed. The comment is queued for processing.
          I: The comment is implemented as requested.
          M: The comment is implemented with modification.
          R: The comment is rejected.
          D: The comment is deferred.
          W: Waiting for clarifying information from the submitter.
          N: The comment is not applicable (e.g., changes to draft artefact make the comment irrelevant)
Additional comment processing requirements:
          (a) When a comment is initially received it is immediately transitioned to a Q state or Z state,
               depending on whether the comment was received during a comment period.
          (b) When a comment period starts, all Z- and D-state comments transition to Q state.
          (c) Some comments may require clarification and in such cases the project group will email the
               submitter requesting such clarification. The submitter‟s original comment and clarifying comments
               shall be a Q-state comment if a comment period is in progress. If a comment period is not in
               progress, the working group will decide (based on their own publicly available written criteria)
               whether the comment is assigned a Q state or Z state.
        (d) All Q-state comments must be processed before ODP4, ODP5, or ODP6 may be declared
             complete.
The Chair of ITPWG has adapted these rules by consolidating some of the requirement into single fields without
    impairing the purpose or operation of the Comment Log process.

     Date    ID     Submitter     Comment        Edited        Artefact     Processing      Notes     Remarks
                                                 Comment       Version      State

    Major comments as included with the Comment Log as an Attachment, while minor comments are listed in
    order of submission date in the Appendix to the document.
Date      ID   Submitter      Comment                                                      Edited    Artefact    Process State   Notes   Remarks
                                                                                           Comment   Version
2010/02        UN ECE         The word "implementer" is impossible to translate            No        CEFACT      I                       Comment accepted
/26            Trade          into Russian and in French as it gives the sense of a                  2009/IT00                           Part of this text has
               Division –     physical person and I feel it would be better to have a                4                                   been moved to the
               Global trade   reference to a body. Hence, I suggest to replace                       19                                  Foreword.
               Solutions      "implementer" by "an implementing agency                               February
               section                                                                               2010
2010/          UNCITRAL       Annex I, sub (a)                                             No        CEFACT                              Accepted. New
05/04                                           It might be useful to specify under                  2009/IT00                           paragraph 2 under
                              this point that the implementation of electronic single                4                                   Annex 2
                              windows would benefit from the adoption of a general                   19
                              legal framework for electronic commerce, including                     February
                              electronic communications and electronic signatures.                   2010
                              This is particularly true in light of the desirability to
                              interact with business operators (B2G) and therefore
                              to promote their use of electronic means also outside
                              the single window environment.

2010/          UNCITRAL       Annex II, p. 7                                               No        CEFACT                              Accepted. New
05/04                                          In the first sentence of the second                   2009/IT00                           footnote 7.
                              paragraph, reference is made to "issues of                             4
                              jurisdiction" and "choice of law questions". While                     19
                              choice of law may be applicable to commercial                          February
                              transactions, insofar allowed by the relevant legal                    2010
                              system, criminal jurisdiction is typically not left to the
                              choice of the parties. It might be desirable to review
                              this paragraph to avoid any possible misunderstanding
                              in this sense.

2010/          UNCITRAL       Annex II, p. 8                                               No        CEFACT                              Accepted. New
05/04                                          The third paragraph refers to the need                2009/IT00                           footnote 8
                              to establish "end user agreements". While establishing                 4
                              the legal framework for access to the single window                    19
                              by users is necessary, this might not be in the form of                February
                              an "end user agreement" of the extent described in the                 2010
                   current text of the draft recommendation, for instance,
                   in case of occasional users of the single window
                   facility, or when access is granted under a different
                   technical solution (such as identity management
                   systems).

2010/   UNCITRAL   Annex II, p. 8                                              No   CEFACT      Accepted
05/04                               In the fourth paragraph, given the              2009/IT00
                   advisory nature of the document, it is suggested that            4
                   the words "should not be allowed" (in the fourth line)           19
                   be replaced with the words "are likely to encounter              February
                   major difficulties in operating".                                2010

2010/   UNCITRAL   Annex II, p. 10                                             No   CEFACT      Accepted.
05/04                                In paragraph 1, the description of the         2009/IT00
                   current state of the matter is correct when it says that         4
                   national single window facilities operators adopt                19
                   national law for identification, etc. standards.                 February
                   However, in the ensuing discussion it might be useful            2010
                   to further clarify that the adoption of "international
                   legal standards and best practices" is advisable both at
                   the national and at the regional level. (Currently, only
                   the regional level is mentioned.)

2010/   UNCITRAL   Annex II, p. 10                                             No   CEFACT      Accepted.
05/04                               In paragraph 4, given the nature of             2009/IT00
                   "checklist" of annex II, it might be useful to insert a          4
                   reference to liability limitation.                               19
                                                                                    February
                                                                                    2010
2010/   UNCITRAL   Annex II, p. 10                                             No   CEFACT      Accepted. In
05/04                                In paragraph 5, the reference to the           2009/IT00   response to the
                   possibility of introducing alternative dispute                   4           UNCITRAL
                   resolution mechanisms in non-civil disputes is                   19          comment here, it
                   unclear. (In line 3 of this paragraph, the reference to          February    would seem to
                   “alternate dispute resolution” is probably a typo.) It is        2010        make it clear that
                   doubtful, for instance, that such systems would be                           ADR would not
                   useful in case of criminal sanctions, and caution                            apply (rather than
                   should be used also in suggesting their use for the                          („not necessarily‟)
                   case of administrative sanctions.                                          apply to unlawful
                                                                                              activities or even
                                                                                              administrative
                                                                                              sanctions.
2010/   UNCITRAL   Annex II, p. 11                                           No   CEFACT      Accepted. Based on
05/04                               In paragraph 1, it is not advisable to        2009/IT00   the UNCITRAL
                   refer to the possibility to bind parties third to an           4           comment, it seems
                   arbitral agreement to that agreement.                          19          prudent to eliminate
                                                                                  February    the reference to
                                                                                  2010        „third-party rights‟
                                                                                              in this context
                                                                                              rather than cause
                                                                                              any confusion. It
                                                                                              should be noted that
                                                                                              the idea here was to
                                                                                              include ADR as a
                                                                                              possibility for
                                                                                              disputes between
                                                                                              SW operators, for
                                                                                              example, in bi-
                                                                                              lateral or multi-
                                                                                              lateral agreements.
2010/   UNCITRAL   Annex II, p. 11                                           No   CEFACT      Accepted
05/04                                In paragraph 3, the reference to the         2009/IT00
                   desirability to align e-commerce and e-government              4
                   legal requirements might be formulated without                 19
                   hinting at the fact that the former should necessary           February
                   follow the latter, as it seems now the case ("... such         2010
                   documents meet the requirements..."). An alternative
                   draft could state: "Shared legal principles and, to the
                   extent possible, legislative provisions should be
                   adopted for business and governmental electronic
                   transactions."

2010/   UNCITRAL   Annex II, p. 11                                           No   CEFACT      Accepted
05/04                               In footnote 4 to paragraph 3, the word        2009/IT00
                   "interpretive" (sic) should be substituted with                4
                   "explanatory".                                                 19
                                                                                  February
                                                                                     2010
2010/   UNCITRAL   Annex II, p. 12                                              No   CEFACT      Accepted
05/04                                In paragraph 1, it might be advisable           2009/IT00
                   to delete the qualification "ownership" in the sentence           4
                   "private sector trading entities [...] may have certain           19
                   ownership rights in the information provided to the               February
                   Single Window". Those rights are not necessarily                  2010
                   always qualified as ownership in each legal system;
                   referring to "interests" instead of "rights" might also
                   be considered. More in general, the possibility to
                   claim access to data, as opposed to “owning” data,
                   should be kept in mind when drafting this paragraph.

2010/   UNCITRAL   Annex II, p. 12                                              No   CEFACT      Accepted
05/04                                In paragraph 3, there is a reference to         2009/IT00   Paragraph on
                   the unlikely possibility of raising concerns relating to          4           Intellectual
                   antitrust regulation. Unless the statistical evaluation of        19          property rights and
                   the likelihood of such concerns is further explained, it          February    database ownership
                   seems desirable to avoid any such evaluation.                     2010        amended

2010/   UNCITRAL   Annex III, p. 14                                             No   CEFACT      Accepted. As noted
05/04                               The treaties listed in paragraph 5               2009/IT00   in the Rec 35,
                   might be reviewed to verify whether additional                    4           countries would be
                   treaties should also be indicated (for instance, the              19          reviewing those
                   WIPO Copyright Treaty (1996)).                                    February    international
                                                                                     2010        agreements to
                                                                                                 which they were
                                                                                                 contracting parties.
                                                                                                 Two WIPO treaties
                                                                                                 were added for
                                                                                                 consistency.
2010/   UNCITRAL   Annex III, p. 14                                             No   CEFACT      Accepted. These
05/04                                There is a typo in the header of part           2009/IT00   texts have been
                   IV (arbitration). Moreover, the possibility to refer to           4           listed in the
                   additional UNCITRAL texts in this section, if                     19          Arbitration section
                   relevant, or other texts, should be considered. For               February    of Annex C.
                   instance, further consideration could be given on                 2010
                   whether the enforcement of an arbitral award could be
                   based on the Convention on the Recognition and
                       Enforcement of Foreign Arbitral Awards (The "New
                       York Convention") (1958). Equally relevant could be
                       the UNCITRAL Model Law on International
                       Commercial Arbitration (1985, amended in 2006),
                       and the UNCITRAL Model Law on International
                       Commercial Conciliation (2002), in providing the
                       general legislative framework for alternative dispute
                       resolution.

2010/   UNCITRAL       Annex III, p. 15                                            No   CEFACT      Accepted
05/04                                  Please use the following text for the            2009/IT00
                       description of UNCITRAL in paragraph 8:                          4
                                                                                        19
                       See attachment 1.                                                February
                                                                                        2010
2010/   UNCITRAL       Annex III, p. 16                                            No   CEFACT      Accepted
05/04                                    Paragraph 13 on the Hague                      2009/IT00
                       Conference on Private International Law does not                 4
                       highlight its potential contribution in this project, nor        19
                       explains its mandate and method of work. It is                   February
                       suggested that the following paragraph could be used             2010
                       instead:
                       “The Hague Conference on private international law
                       is an intergovernmental organization whose purpose
                       is to further the progressive unification of the rules of
                       private international law. The results of its work
                       include multilateral treaties in the fields of
                       international legal co-operation and litigation and of
                       international commercial and finance law”.

2010/   UN ECE         1) the text below (from Recommendation 35) refers to        No   CEFACT      Accepted
05/04   Trade          UN/CEFACT as an organization; it is a mistake and                2009/IT00
        Division –     the proposed new wording in a track mode is                      4
        Global trade   supposed to address this issue .                                 19
        Solutions                                                                       February
        section        United Nations Centre for Trade Facilitation and                 2010
                                         Electronic Business
                                         The UN/CEFACT1 ( a subsidiary body of UN/ECE;
                                         UN Economic Commission for Europe)supports
                                         activities dedicated to improving the ability of
                                         business, trade and administrative organizations, from
                                         developed, developing and transitional
2010/                 UN ECE             2) A comment to address concerns raised by the            No   CEFACT          Accepted with
05/04                 Trade              Russian delegate at the TBG 165 meeting in Geneva I            2009/IT00       linguistical
                      Division –         n February 2010:                                               4               amendments
                      Global trade                                                                      19
                      Solutions          a) it is secretariat‟ understanding that TBG 15 agreed         February
                      section            to add to Rec.35 a phrase that it constitutes a part of        2010
                                         the package of the UN/CEFACT recommendations on
                                         SW (and may be explicitly mention 33, 35 and 34) .
                                         In our opinion, then it will be more clear what the
                                         phrase below means
                                         “There is also no special sequence in which
                                         UN/CEFACT recommendations on Single Windows
                                         should be implemented, the implementer should take
                                         part of available recommendations”

2010/05               UN ECE             From page 3                                               No   CEFACT      I
/11                   Trade              Current text :                                                 2009/IT00
                      Division –         The Recommendation responds to a stakeholder                   4
                      Global trade       request at the UNECE Symposium on Single Window                19
                      Solutions          Standards and Interoperability (held in May 2006)              February
                      section            from users of Recommendations 33 (establishing a               2010
                                         Single Window). The recommendation is applicable
                                         in all the three different models of Single Windows
                                         described in Recommendation 33. However, the more
                                         complex a Single…………

                                         Proposed text (changes in “bold”); I feel it will make
                                         text more clear.

                                         The Recommendation responds to a stakeholder


1 For more information please visit: www.unece.org/cefact
                         request made at the UNECE Symposium on Single
                         Window Standards and Interoperability (held in May
                         2006) from users of Recommendations 33
                         (establishing a Single Window). The current
                         recommendation is applicable in all the three different
                         models of Single Windows described in
                         Recommendation 33. However, the more complex a
                         Single…………

2010/05   UN ECE         Prom page 3 (same para as above)                          No   CEFACT      I   Accepted
/11       Trade          Current text                                                   2009/IT00
          Division –     The Recommendation reflects general legal concerns,            4
          Global trade   drawing on the experience from the Single Windows              19
          Solutions      models documented in the UN Single Window                      February
          section        Repository as well as experiences from                         2010

                         Proposed text (in bold) plus footnote

                         The Recommendation reflects general legal concerns,
                         drawing on the experience from the Single Windows
                         models documented in the UN/CEFACT (UN/ECE)
                         Single Window Repository as well as experiences
                         from

2010/05   UN ECE         Footnote on page 13                                       No   CEFACT      I   Accepted (see
/11       Trade          Governments should review carefully the text                   2009/IT00       footnote 9.)
          Division –     developed by the United Nations Commission on                  4
          Global trade   International Trade Law for clear guidance here.               19
          Solutions      Both its UN Electronic Communications Convention               February
          section        and its Model Law on Electronic Commerce, along                2010
                         with their accompanying explanatory notes are
                         relevant here.

                         Proposed changes
                         Governments should review carefully the texts
                         developed by the United Nations Commission on
                         International Trade Law for clear guidance (namely ,
                         its UN Electronic Communications Convention and
                         its Model Law on Electronic Commerce, along with
                             their accompanying explanatory notes)..

2010/05       UN ECE         Text from page 17                                           No   CEFACT      I   Rejected. TBG 15
/11           Trade                                                                           2009/IT00       feels that the
              Division –     United Nations Commission on International Trade                 4               importance of
              Global trade   Law (UNCITRAL)                                                   19              UNCITRAL
              Solutions                                                                       February        motivates a
              section        Suggestion to shorten the text. Se attachment 2.                 2010            somewhat longer
                                                                                                              text in this context.
2010/     1   HoD            Insert the following text:                                  No   CEFACT      Q   Rejected. TBG 15
05/19         Russian        "The Recommendation shall not be seen as suggesting              2009/IT00       feel that this
              federation     unique and universal approaches suitable for all                 4               reflects a need that
                             situations and for all countries. It describes a model of        19              has to do with the
                             a process and it does not, for example, cover                    February        clearance based on
                             situations when Governments based on legitimate                  2010            the data collected
                             interests/concerns can introduce certain                                         rather than on the
                             limitations/reservations in the single window regimes                            data stream itself.
                             for concrete goods or for specific situations (for                               The SW does not
                             example, on rules regarding clearance of dangerous,                              affect the decisions
                             radioactive or other sensible goods; on clearance                                made on basis of
                             delays when a final decision depends on receipt of                               the information in
                             information / pre-approval from other agencies/                                  the datastream.
                             ministries; on reimbursement of VAT, etc.)."
Attachment 1.

The United Nations Commission on International Trade Law was established by the General Assembly in 1966 (Resolution 2205(XXI) of 17 December 1966). In establishing
the Commission, the General Assembly recognized that disparities in national laws governing international trade created obstacles to the flow of trade, and it regarded the
Commission as the vehicle by which the United Nations could play a more active role in reducing or removing these obstacles. The General Assembly gave the Commission
the general mandate to further the progressive harmonization and unification of the law of international trade. The Commission has since come to be the core legal body of the
United Nations system in the field of international trade law. UNCITRAL may draft both legislative texts, such as conventions, model laws, and legislative guides, which may
be adopted by States through the enactment of domestic legislation, and non-legislative texts that can be used directly by parties to international trade contracts. In the field of
single window facilities, it should be noted that at its forty-first session, in 2008, the Commission requested the Secretariat to engage actively, in cooperation with the World
Customs Organization (WCO) and UN/CEFACT in the study of the legal aspects involved in implementing a cross-border single window facility with a view to formulating a
comprehensive international reference document on the legal aspects of creating and managing a single window. That word is being carried out in the WCO-UNCITRAL
Joint Legal Task Force on Coordinated Border Management Incorporating the International Single Window.

Attachment 2.

Proposed text

United Nations Commission on International Trade Law (UNCITRAL)

The United Nations Commission on International Trade Law is the core legal body of the United Nations system in the field of international trade law. UNCITRAL may draft
both legislative texts, such as conventions, model laws, and legislative guides, which may be adopted by States through the enactment of domestic legislation, and non-
legislative texts that can be used directly by parties to international trade contracts. Since 2008, the Commission cooperates actively with the World Customs Organization
(WCO) and UN/CEFACT in the study of the legal aspects involved in implementing a cross-border single window facility with a view to formulating a comprehensive
international reference document on the legal aspects of creating and managing a single window. That word is being carried out in the WCO-UNCITRAL Joint Legal Task
Force on Coordinated Border Management Incorporating the International Single Window.