Law Commission of England and Wales on Electronic Trade Documents in Private International Law

I have already reported on this blog that earlier this year the Law Commission of England and Wales published a call for evidence to help them identify the most challenging and prevalent issues of private international law that arise from the digital, online, and decentralised contexts in which modern digital assets and electronic trade documents are used.

The first result of that call for evidence is an interim document relating to electronic trade documents (ETDs) in private international law. This 22-page document explains how the UK Electronic Trade Documents Act 2023 and other legislation inspired by the UN Model Law on Electronic Transferrable Records interact with private international law. It is structured as a ‘Frequently Asked Questions’ to respond directly to the most common concerns raised with the Law Commission so far.

The FAQs answered in the document are:

Q.1. When will ETDs engage private international law?
Q.1(a) What is private international law?
Q.1(b) How do private international law and trade documents interact in the cross-border context?
Q.1(c) How do the courts of England and Wales approach private international law?
Q.1(d) If an applicable law rule points to the law of England and Wales, does this include the private international law rules of England and Wales?
Q.2. What law applies to/governs an electronic trade document and electronic validity?
Q.2(a) What law “governs” or “applies to” a trade document”?
Q.2(b) What law “governs an electronic trade document” or “electronic validity”?
Q.3. When does the Electronic Trade Documents Act 2023 apply?
Q.4. Can I choose the Electronic Trade Documents Act 2023 as the law applicable to my trade document?
Q.5. Is section 72 of the Bills of Exchange Act 1882 problematic in the electronic context?
Q.6. Can section 72 of the Bills of Exchange Act 1882 “invalidate” an electronic trade document?
Q.6(a) When do issues of “electronic validity” arise under section 72?
Q.7. Is Section 72 out of date?

The Law Commission welcomes any follow up questions at conflictoflaws@lawcommission.gov.uk with the subject “ETDs in PIL: FAQs”.