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.