Jacob Atkins checks in on efforts around the world to bestow legal recognition on electronic trade documents, among the most significant systemic changes to the trade finance industry since its inception.
One of the world’s most energetic proponents of a shift to digital trade believes a point of no return has been reached on legal reform to unlock paperless trade finance.
“There is terrific momentum now around removing legal barriers,” enthuses Chris Southworth, head of the International Chamber of Commerce (ICC) UK. “I think we have reached a tipping point where there is such momentum that this is happening now, with or without advocacy from industry.”
From relatively sluggish beginnings late last decade, when the industry saw the topic as interesting but fairly distant, reforms giving legal equivalence to digital versions of key trade documents – such as bills of lading and exchange, warehouse receipts, promissory notes, waybills and insurance certificates – have finally gone mainstream.
The Covid-19 pandemic helped expose the vulnerabilities, both to fraud and just plain inefficiency, of relying on couriering paper documents. Trade digitisation has since caught the attention of the world’s biggest economies and trading nations. The G7 committed to paperless trade in 2021, while most recently the Commonwealth Secretariat established a legal reform and digitalisation working group to steer a shift to digital.
Many of the legal reform efforts either already implemented or now underway are focused on complying with the UNCITRAL Model Law on Electronic Transferable Records (MLETR), which acts as a template and aims to promote commonality across borders.
GTR has tracked the current status of efforts to introduce MLETR or similar legislation across the globe, drawing on interviews, publicly available documents and a legislative tracker maintained by the ICC. We caution that it is not an exhaustive list. Information on some jurisdictions could not be obtained, and while information was correct at the time of writing, it may have changed by press time.
Implemented
Singapore
A fulcrum of trade finance and shipping in Asia, the city-state’s 2021 adoption of legal amendments that hew closely to MLETR was celebrated as a milestone. Tech firms such as Secro and essDocs have taken advantage of the changes to pilot trade transactions involving products such as fertiliser and nickel. The legal framework is also underpinning wider digitisation efforts in Singapore’s trade sector, with the active involvement of the government’s Infocomm and Media Development Authority and several major commercial lenders.
Abu Dhabi
Hot on the heels of Singapore, ADGM reformed its law in early 2021 to include paperless trade documents. In a transaction in November of that year, overseen by regulators in ADGM and Singapore, lenders DBS, Emirates NBD and Standard Chartered carried out a pilot transaction using electronic trade documents. The two financial hubs said they planned to encourage other private sector entities to model live transactions on the pilot and begin to take advantage of the legal harmony.
Bahrain
The Gulf state has the distinction of being the first-ever jurisdiction to enact MLETR through its Electronic Communications and Transactions Law back in 2018, part of the government’s attempt to position the country as a fintech hub of the Middle East. The same legislation was also used as the basis for a law enabling e-cheques in 2021.
In progress
United States
The situation in the US is complicated because electronic transferable records are not recognised in federal law, which applies to all states, but rather through the Uniform Commercial Code (UCC), which each state adopts independently and is not precisely aligned with MLETR. In mid-2022 the commission responsible for the UCC finalised amendments which create the functional equivalent of a negotiable instrument and allow electronic versions of bank drafts and bills of exchange. The amendments, combined with the UCC’s existing provisions, mean “there may be no further need to produce and deliver a physical negotiable instrument”, according to law firm Mayer Brown. “Elimination of the requirement of a paper draft will solve long-standing problems that have significantly constrained the growth of draft/bill of exchange-based financing structures in trade finance transactions” the firm says in an April note.
But so far, only a handful of states – Nebraska, New Hampshire, Iowa, Wyoming and North Dakota – have adopted the changes, which are mired in controversy because they also apply to cryptocurrencies, a hot-button political issue in the US. In May, New York state senator and judiciary committee chair, Democrat Brad Hoylman-Sigal, put forward a bill to recognise the UCC amendments there. Due to New York City’s status as a financial super-hub, implementation by the state legislature is seen as a major leap forward for nationwide adoption, as well as a major practical success. However, the city is also at the centre of the country’s fractious debate on crypto and Alisa DiCaprio, chief economist at blockchain firm R3, cautions there are “there are lots of obstacles to implementation” nationwide.
United Kingdom
The courthouses of London have played a central role in parsing shipping contracts and bills of lading for centuries and look set to continue doing so as the UK nears full legal recognition of electronic trade documents through the Electronic Trade Documents Bill. This development has significance well beyond UK borders because English law governs 80% of bills of lading worldwide, according to Southworth, meaning trade finance disputes from all over the world are adjudicated in London. Following a detailed Law Commission report and draft legislation, the government last October introduced the bill, which is aligned with MLETR, in the House of Lords. The draft law was discussed in parliamentary committees in which industry figures expressed strong support for the measure, and it passed the House of Lords in late March. It was then introduced in the House of Commons. At the time of writing, passage of the bill into law was expected within months.
France
The addition of France to the ranks of MLETR-aligned countries will be an important milestone because of its large trade volumes and status as a European banking hub. The government is making speedy progress. Last year it tasked a working group to consult widely among the lending, corporate, tech and shipping sectors and provide options to the government on what legal changes are required to recognise digital trade documents and the most effective way of achieving them. The treasury and justice ministries received the working group’s recommendation in May and are now reviewing the findings. Those involved in the effort also hope French reforms could act as a template for other Francophone nations.
Germany
Europe’s largest economy has allowed digital versions of many key trade documents for almost 10 years due to changes in 2013 to the country’s commercial code. But with few other countries operating similar frameworks and a lack of impetus from local businesses or banks, they have been little used. As global momentum has shifted since the pandemic, there has been a groundswell of demand largely driven by the exporting giant’s business community, according to ICC Germany secretary-general Oliver Wieck.
In October 2022, ICC Germany presented a draft regulation for electronic freight and warehouse documents and for electronic transport insurance certificates. The latter was adopted by the German Bundestag in February 2023. This means Germany is “99% MLETR-compliant”, says Wieck, adding that his organisation is encouraging the German government to provide legal recognition to the last missing negotiable document: electronic bill of exchange. According to Wieck, there is a strong demand for digital trade documents from Germany’s corporates. After ICC Germany presented details of the legal reform earlier this year, he says: “There were a lot of banks, corporates, freight forwarders and IT platforms saying ‘tell me more, we want to be engaged’. So that is very positive feedback from the business community.”
Thailand
Since 2021, Bangkok has been crafting amendments to the country’s Electronic Transactions Act to include electronic transferable records (ETRs), which are expected to become law sometime in 2024, following the formation of a new government. According to a March report published by the ICC, the draft revisions include “the legal recognition of ETR, the requirements of an ETR, the replacement of a paper-based transferable document with an electronic transferable record, and the endorsement and control of an ETR”. The UK government has helped fund a project involving Thailand’s Electronic Transactions Development Agency, the ICC and others aimed at facilitating paperless trade between the UK and Thailand and preparing for the advent of digital trade documents becoming a reality in both countries.
Under discussion
Finland
The Nordic nation fancies itself as a tech-savvy place to do business, and local figures have recently looked to MLETR to help cement that status in the field of trade. Harri Rantanen, newly elected chair of the Finnish ICC’s digital economy team, has recently met with government ministries to explain the benefits of digital trade reform and gauge potential support. The organisation is set to shortly hatch an action plan to chart the course to implementation. That will involve first, establishing a business case for reform and then running a legal assessment to understand what areas of law may already be in place, and what would need to be added. Rantanen says that corporates and SMEs will be closely involved in the efforts and that once the process in Finland is complete, it will encourage other trading partners, such as economies in Asia, to follow suit.
China
The importance of the ‘factory of the world’ enabling digital trade documents is self-explanatory. The country’s government seems keenly aware of its importance and does not want to be left behind as European trading partners make rapid progress, according to the ICC’s Tianmi Stilphen, who has discussed reforms with government representatives and steers the organisation’s MLETR tracker. The country’s ministry of commerce is enthusiastic about enacting legal reforms and is currently in the process of allocating another government body to be in charge of the reform, Stilphen says. Electronic bills of exchange and promissory notes are already recognised under Chinese law and in May this year, China’s commerce minister announced the country’s intentions to join the Digital Economy Partnership currently involving Chile, New Zealand and Singapore, which includes a commitment to paperless trade.
