WHAT IS THE ELECTRONIC TRANSACTIONS ACT?
The Electronic Transactions Act (Cap. 88, Rev. Ed. 2011) (“ETA”) provides a legal framework to facilitate the recognition and use of electronic records by commercial parties and by government institutions. Originally enacted in 1998, the current version of the ETA was re-enacted in 2010 to “better fit the current Internet environment”1.
One of the underlying aims of the ETA is to ensure the “functional equivalence” of electronic records2. In other words, assuming the requisite pre-conditions are made out, the electronic records will be treated as the “equivalent” of any paper-based requirements specified under law.
The ETA has enabled businesses to adopt electronic means of transacting and digitize their services3. However, its use is currently limited as the following categories are excluded from the scope of the ETA4:
- the creation or execution of a will;
- negotiable instruments, documents of title, bills of exchange, promissory notes, consignment notes, bills of lading, warehouse receipts or any transferable document or instrument that entitles the bearer or beneficiary to claim the delivery of goods or the payment of a sum of money (“Category 2 Documents”);
- the creation, performance or enforcement of an indenture, declaration of trust or power of attorney, with the exception of implied, constructive and resulting trusts;
- any contract for the sale or other disposition of immovable property, or any interest in such property; and
- the conveyance of immovable property or the transfer of any interest in immovable property.
In June 2019, the IMDA issued a consultation paper to discuss (among other issues) the proposal to remove such exclusions so that the ETA can be applied to more transactions (the “ETA Consultation Paper”).5
The Electronic Transactions (Amendment) Bill (Bill No. 1/2021) (the “Bill”) reflects the outcome of this consultation process in relation to trade-related electronic transferable records such as Bills of Lading, Bills of Exchange and Promissory Notes (i.e. Category 2 Documents).
The Second Reading of the Bill took place on 2 February 2021, after which it was passed.
THE ELECTRONICS TRANSACTION (AMENDMENT) ACT 2021
The amendments to the ETA may broadly be categorized as follows:
- Giving effect to the UNCITRAL Model Law on Electronic Transferable Records adopted by the United Nations Commission on International Trade Law on 13 July 2017 (the “Model Law”) and United Nations Convention on the Use of Electronic Communications in International Contracts (the “ECC”)
- Provisions specific to the inclusion of Category 2 Documents
- Giving effect to the Model Law and ECC
Clauses 3 to 5 of the Bill make consequential amendments to align the ETA with the Model Law and the ECC.
It also defines an “electronic transferable record”6 as (i) an electronic record containing the required information, and (ii) which uses a reliable method to identify, control and retain the integrity of the records.7
- Rules governing Category 2 Documents
The Bill inserts a new “Part IIA” into the ETA, which specifically governs electronic transferable records in line with the framework set out by the Model Law.8 Part IIA, which contains the bulk of the amendments intended to be made to the ETA, focuses on the recognition and use of electronic trade documents – even across borders.
New definitions to include Category 2 documents:
Part IIA introduces new definitions specific to this Part. The definition of “transferable documents and instruments”, for instance, specifically includes bills of exchange, promissory notes, and bills of lading (as defined by the Bills of Exchange Act or under any other rule of law).9
Furthermore, the definition of “electronic record” for the purposes of Part IIA is broader than its definition under s 2(1) of the ETA, to include information “logically associated” with the record via computer software, such as any amendments or indorsements to the record.10 The Bill also states that the electronic records could validly include dynamic “additional information” such as the location of a vessel.11
Ensuring functional equivalence:12
To uphold the ETA’s aim of ensuring the functional equivalence of electronic transferable records with their paper counterparts, the new Part IIA provides the following:
- Validity regardless of place of issuance:13 Electronic transferable records, whether issued in Singapore or elsewhere14, will have legal effectiveness, validity, and enforceability.
- Satisfies writing requirements15: Any requirements for information to be provided in writing can be satisfied by an electronic transferable record.
- Electronic signatures16: Any requirement for a signature on a transferable document can be satisfied by an electronic signature on an electronic document.
- Possession of electronic records:17The requirement for possession of a transferable document can be satisfied if a reliable method is used to establish exclusive control and identify the person in control.
Using electronic transferable records:18
Part IIA further provides that the electronic transferable records may be validly used for the following purposes if a ‘reliable method’19 is used:
- Indicating time and place;20
- Indicating indorsements;21
- Indicating amendments;22 and
- Converting the medium of the record from physical to electronic, or vice-versa. In such a case, the previous form of the transferable document will (i) cease to have legal validity and (ii) must be rendered inoperative.23
Moreover, it presumes that any issuance, transfer, control, presentation or storage of electronic transferable records by an accredited records management system24 will be presumed to have been done so in a ‘reliable method’ unless evidenced to the contrary.
ARE THE AMENDMENTS WELCOMED?
In line with developments in the maritime and commodities industry
The latest amendments directly impact the maritime and commodities industries.
Trades in the commodities and maritime industries are generally international in nature and involve thousands of documents in a single transaction. This racks up the costs incurred by the parties to the transaction. For example, Maersk once found that a simple shipment of refrigerated goods from East Africa to Europe can involve nearly 30 people and organisations, with more than 200 different interactions and communications among them, and that the costs associated with document processing alone amounted to 20% of the transportation costs.25
To reduce such needless wastages of time and money in cross-border trades, the Singapore government launched the Network Trade Platform initiative in 2018. In December 2020, DPM Heng Swee Keat said that as part of this initiative, Singapore is involved in testing out digital documentation with 2 ports in China – Qinzhou and Tianjin – to facilitate trade by reducing the amount of paperwork needed.26 The proposed amendments to the ETA would be a step forward in meeting the aims of this initiative.
Furthermore, the Bill envisages for the transfer of electronic documents such Bills of Lading to be done via a centralised platform accredited under Singapore regulations. Using such centralised platforms for storing, retrieving and validating electronic records could eliminate the circulation of fraudulent Bills of Lading and other such documents, which have been the key allegation made in the collapse of commodity giants such as Hin Leong, Agritrade International and Zenrock in the last year alone. Indeed, IBM and Maersk launched Tradelens, a blockchain-based platform, in 2017 for this very purpose.27
It is recognized the availability and usage of such platforms is likely to depend on whether the rest of the world has enacted similar legislation or else adopted the Model Law as part of its substantive law. This is particularly true in the trade and commodities industries, which are very international in nature. It is noted that to date, domestic legislation incorporating the Model Law has only been enacted in Bahrain.28 Nevertheless, Singapore’s early adoption of the Model Law through the ETA does not render it inoperable with other jurisdictions. In response to a question on this point by MP Louis Ng, Mr. S. Iswaran, the Minister of Communications and Information, noted that the amendments to the ETA require both parties to consent to the use of electronic transferable records, and also enable the change of medium from a physical instrument to an electronic one and vice-versa. This enables parties to decide to use electronic transferable records with the assurance that they will be free to convert it to a physical transferable document at a later stage.29
Reduction in costs can help SMEs
The Bill can help businesses, particularly SMEs, significantly reduce costs by permitting the adoption of the use of electronic transferable records. But it is ultimately up to the business to opt whether they wish to do so. 30
To this end, IMDA is working closely with trade associations and chambers to host industry events and webinars to reach out to SMEs, and push out initiatives such as the IMDA’s SME Digital Tech Hub to provide specialist digital technology advice to SMEs in areas such as data analytics and cybersecurity. There are also alternative platforms which SMEs can benefit from, such as Trade Trust which is an open-source blockchain platform aimed at digitising international commerce.
“Technological neutrality” in the ETA and the amendments
Critically, in alignment with the another underlying aim to put in place “technologically neutral” provisions in the ETA (i.e. legislation that is neutral with respect to the technology used)31, a ‘functional equivalence’ approach is adopted in the ETA.32 This is encapsulated in the new Part IIA, which is drafted to regulate ‘electronic transferable records’ of all kinds, regardless of the underlying technology. The ETA therefore should be able to adapt to the use of new technologies such as smart contracts or distributed ledger technology (DLT), which is the foundation of blockchain. The ETA Consultation Paper noted that smart contracts and DLT technology are unlikely to be denied validity or enforceability under the ETA.33
The continual perpetuation of such an approach in the amendments to the ETA’s paves the way for the Government’s upcoming plans in the pipeline to digitize records swiftly and eventually working towards increasing the applicability of the ETA to all categories of documents. Notably, the latest announcement is the Ministry of Social and Family Development (MSF)’s initiative to amend the Mental Capacity Act and allow for the digitization of Lasting Power of Attorneys (LPAs), which could reduce the time needed to register an LPA from an average of 3 weeks to just 8 working days.34
The amendments to the ETA are a positive step in the right direction towards the digitization of documents, first of which are documents in the commodities and finance sectors. It is a piece of the puzzle that has been put in its place to realize the greater vision and goal. The intention of the legislature to expand the ETA to its maximum by 2023 is clear and has been articulated. Once the necessary legislative and administrative frameworks are enacted and implemented, we can look forward to updates to the ETA in the near future.
This article is authored by Ms Jacqueline Teo (Senior Associate), Ms Vera Koh (Senior Associate) and Ms Alekhya Kaneti (Legal Executive).
If you have any questions, please do not hesitate to contact our team below or any of your lawyers at Wee Swee Teow LLP.
Wee Swee Teow is a member of Mackrell International, an international network of law firms (www.mackrell.net).
Disclaimer: The material in this article is prepared for general information only and is not intended to be a full analysis of the points discussed. This article is also not intended to constitute, and should not be taken as, legal, tax or financial advice by Wee Swee Teow LLP. Any illustrations used in this article may not be applicable or suitable for your specific circumstances or needs and you should seek separate advice for your specific situation. Any reference to any specific local law or practice has been compiled or arrived at from sources believed to be reliable and Wee Swee Teow LLP does not make any representation as to the accuracy, reliability or completeness of such information.
1Infocomm Media Development Authority, ‘The Electronic Transactions Act (Cap. 88) – Infocomm Media Development Authority’, (2021), online: <https://www.imda.gov.sg/regulations-and-licensing-listing/electronic-transactions-act-and-regulations#:~:text=The%20Electronic%20Transactions%20Act%20(the,%2C%20authentication%20and%20non%2Drepudiation> [Accessed 5 February 2021].
2Paragraph 1.3a, Consultation Paper issued by the Infocomm Media Development Authority on Review of the Electronic Transactions Act (cap. 88) dated 27 June 2019 (“ETA Consultation Paper 2019”)
3Paragraph 2.1, ETA Consultation Paper 2019
4ETA, First Schedule
5Paragraph 2.2, ETA Consultation Paper 2019
6Clause 3, read with section 16A, clause 6, Electronic Transactions (Amendment) Bill (Bill No. 1/2021) (“ETA Bill 2021”)
7As specified in section 16H, clause 6, ETA Bill 2021
8Clause 6, ETA Bill 2021
9Section 16A(1), clause 6, ETA Bill 2021
10Ibid, read together with its explanatory statement
11Example (b), section 16C, clause 6, ETA Bill 2021
12Division 2, clause 6, ETA Bill 2021
13Section 16E, clause 6, ETA Bill 2021
14See footnote 23.
15Section 16P, clause 6, ETA Bill 2021
16Section 16G, clause 6, ETA Bill 2021
17Section 16I, clause 6, ETA Bill 2021
18Division 3, clause 6, ETA Bill 2021
19In accordance with the ‘General Reliability Standard’ set out in section 16O, clause 6, ETA Bill 2021
20Section 16J, clause 6, ETA Bill 2021
21Section 16K, clause 6, ETA Bill 2021
22Section 16L, clause 6, ETA Bill 2021
23Section 16M and 16N, clause 6, ETA Bill 2021
24In accordance with the regulation made under section 16Q, clause 6, ETA Bill 2021
25Cision PR Newswire, ‘Maersk and IBM Unveil First Industry-Wide Cross-Border Supply Chain Solution on Blockchain’, (2017), online: <https://www.prnewswire.com/news-releases/maersk-and-ibm-unveil-first-industry-wide-cross-border-supply-chain-solution-on-blockchain-300418039.html> [Accessed 5 February 2021].
26The Straits Times, ‘Proposed changes to electronic transactions law’, (2021), online: <https://www.straitstimes.com/singapore/politics/proposed-changes-to-electronic-transactions-law> [Accessed 5 February 2021]
27IBM, ‘Maersk and IBM Introduce TradeLens Blockchain Shipping Solution’, (2017), online: <https://newsroom.ibm.com/2018-08-09-Maersk-and-IBM-Introduce-TradeLens-Blockchain-Shipping-Solution> [Accessed 5 February 2021]
28United Nations Commission on International Trade Law, ‘UNCITRAL Model Law on Electronic Transferable Records (2017) – Status’, online: <https://uncitral.un.org/en/texts/ecommerce/modellaw/electronic_transferable_records/status> [Accessed on 5 February 2021]
29The Straits Times, ‘New law to allow e-documents for cross-border trade, LPAs’, (2021), online: <https://www.singaporelawwatch.sg/Headlines/new-law-to-allow-e-documents-for-cross-border-trade-lpas> [Accessed on 5 February 2021]
30See footnote 29.
31Paragraph 1.3c, ETA Consultation Paper 2019
32Paragraph 3.2.5, ETA Consultation Paper 2019
33Paragraph 3.2.6 and 3.3.5, ETA Consultation Paper 2019
34Excluding the three-week mandatory waiting period during which a person can withdraw his application, and the person appointed to act on his behalf can raise objections. See footnote 29.