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SOLVING THE POSSESSION PROBLEM: AN EXAMINATION OF THE LAW COMMISSION’S PROPOSAL ON ELECTRONIC TRADE DOCUMENTS

Lloyd's Maritime and Commercial Law Quarterly

SOLVING THE POSSESSION PROBLEM: AN EXAMINATION OF THE LAW COMMISSION’S PROPOSAL ON ELECTRONIC TRADE DOCUMENTS

Miriam Goldby * and Weishi Yang

This article examines the provisional proposals on electronic trade documents published by the Law Commission of England and Wales, focusing on the electronic bill of lading as a case study of the proposed reforms. It uses a comparative lens to explain these proposals and the accompanying draft Bill as compared with other initiatives which seek to achieve the same aims, including the United States Uniform Commercial Code, §7, the UNCITRAL Rotterdam Rules and the UNCITRAL Model Law on Electronic Transferable Records. This article aims to answer three questions. First, how do these proposals solve what we term the “possession problem”? Second, how do the proposals fit within the existing law of England and Wales? Third, how do these proposals align with other initiatives in this area?

I. INTRODUCTION

The bill of lading emerged in the era of the “sedentary merchant”,1 ie, one who stayed put rather than accompanying the goods in which he was trading on their sea voyages. To begin with, the document served merely as proof of shipment. The modern bill of lading, used as a document of title, probably originated in Italy in the Renaissance period, perhaps inspired by Roman usages.2 It is the document of title function that sets the bill of lading apart from the generality of documentation intended to evidence facts and obligations. As a result of this function, the right to claim performance of the recorded obligations is

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