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The intensification of international trade due to the development of IT technologies contributed to the modernization of national legislation by countries, in particular, taking into account the model laws of the United Nations Commission on International Trade Law (hereinafter - UNCITRAL) on electronic commerce and electronic signatures. In particular, Ukraine has improved the Law of Ukraine «On Electronic Commerce», «On Electronic Trust Services», «On Electronic Digital Signature», etc. However, this was not enough to fully meet the modern needs of business entities in this area. Today, there are problems of dematerialization of certain documents used in international trade (bills of lading, bills of exchange, warehouse receipts, etc.) for exchange between various stakeholders, including public authorities and transport intermediaries. The lack of legal framework for electronic transfer of records created on paper leads to uncertainty in their use. At the same time, the dematerialization of relevant documents can facilitate electronic commerce, for example by increasing the speed and security of data transfer and automating certain transactions using «smart contracts». Electronic transferable records may be particularly relevant not only for certain business areas, such as transport and logistics, finance, but also for developing countries, such as Ukraine.

The current legislation of some countries, including Ukraine, does not recognize the mechanism of electronic trade documents circulation. Thus, the industries that use them are not able to switch to a completely paperless document flow. As a result, international trade is complicated by the need to process a significant amount of paper documents. For example, the world's largest container ships can carry 24,000 twenty-foot containers at a time on the same voyage.  For each of these cargoes, paper transport documentation must be created and processed manually to make its way from the shipper of the goods to the final buyer at the destination point, sometimes through numerous intermediaries. The Digital Container Shipping Association estimates that 16 million original bills of lading were issued by sea carriers in 2020, and more than 99% of them were in paper form (DCSA, 2022).

Therefore, the legislative consolidation of the possibility of using electronic versions of certain trade documents will have a positive impact on the intensification of work in this area, in particular, will optimize trade procedures, improve information management and strengthen information security. Unified legal regulation is necessary to ensure the use of such documents in international trade.

The result of international efforts in this direction was the adoption of a unified and neutral document - the UNCITRAL Model Law on Electronic Transferable Records (hereinafter - MLETR) in 2017 (MLETR, 2017). Being aware of the importance of international compatibility of legislative approaches to ensure the circulation of electronic trade documents between different jurisdictions and their recognition as legally equivalent to paper versions, more and more countries, including the United Kingdom, have started implementing the MLETR Model Law. Thus, on 30 April 2021, the Law Commission published a report with a draft law «On Electronic Trade Documents», which aims to legally recognize trade documents such as bills of lading and bills of exchange in electronic form (ETD, 2022). The draft of the relevant legal act defines 7 criteria that an electronic document must meet to be considered an «electronic trade document».

At the same time, the norms of MLETR are not fully implemented in it, but taking into account the existing legislation and established practice. For example, unlike MLETR, the Draft Law does not contain a clear provision allowing electronic documents to meet the requirements of «written form». This is due to the fact that the legislation of England and Wales defines «written form» in a broad sense (identifies it with electronic form). In addition, the provisions of this draft law do not change the peculiarities of signatures of electronic documents already defined by national legislation and, unlike MLETR, provide for the possibility of endorsement on an electronic trade document (as it is an integral part of many trade documents) (ETD, 2022).

In view of the commitment of the G7+ countries to promote the use and recognition of electronic transferable records (model laws of the United Nations Commission on International Trade Law (NDS, 2022), in particular in developing countries, the experience of the United Kingdom, and the insufficiency of the Laws of Ukraine «On Electronic Documents and Electronic Document Management», «On Trust Services», «On Electronic Commerce» (which are the result of the implementation of international documents, in particular UNCITRAL) for the electronic document flow, the development and adoption of a separate law «On Electronic Trade Documents» (taking into account the norms of existing national legislation and national interests), which would contain a clear concept of «trade document», «trade electronic document» (which are currently absent at the legislative level) and their classification, is justified.

electronic trade documents; UNCITRAL; electronic transferable records; bill of lading; bill of exchange