Legal Issues of Single Window Facilities for International - uncitral

Modern Law for Global Commerce
Congress to celebrate the fortieth annual session of UNCITRAL
Vienna, 9-12 July 2007
Legal Issues of Single Window Facilities for International Trade
Dr. Bart W. Schermer, 1
on behalf of the
UN Economic Commission for Europe’s Centre for Trade Facilitation and Electronic
Business (UN/ECE/CEFACT Legal Group)
1. Introduction
Information and communication technologies (ICTs) have made such an impact on the way we structure
our society, that our society can be characterized most accurately as an “information society.” In the
context of international business, ICTs have been used primarily to facilitate existing business processes,
such as communication and contract formation. While the use of ICTs in this manner has been a great
boon to global commerce, they have also raised new legal issues.
Over the years UNCITRAL has addressed many of these legal issues through (model) laws and
conventions such as the Model Law on Electronic Commerce (1996), the Model Law on Electronic
Signatures (2001), and the Convention on the Use of Electronic Communications in International
Contracts (2005). 2 However, technological, cultural, economic, and political factors continue to enable
the development of new business models and business processes. In particular, business models and
processes inspired by the idea of networked organizations, where information quickly flows between the
different nodes of the network, raise new legal issues. One of the new business processes is the single
window for international trade. In its simplist conception, the single window for international trade is a
facility where parties involved in trade and transport can lodge all the necessary information and
documents simultaneously.
The goal of this article is to describe the single window concept and explore possible legal issues that
flow forth from this concept. Furthermore, we shall examine the role (if any) of the United Nations in
addressing legal issues of single window facilities. The article is structured as follows: Section 2
describes how single windows operate, Section 3 identifies the most prominent legal issues, and Section 4
examines whether the United Nations in general, and UNCITRAL in particular, have a role to play in
addressing these legal issues. The article shall be concluded in Section 5.
2. Description of a single window for international trade
Companies engaged in international trade, whether through smaller operations or as part of global supply
chain networks, have to submit large volumes of information and documents to governmental authorities
on a regular basis in order to comply with regulatory requirements. This information and documentation
often has to be submitted through several different agencies, each with their own specific (manual or
automated) systems and paper forms. These extensive (and often repetitive) requirements, together with
their associated compliance costs and enhanced risk of error, can constitute a serious burden to both
1 Bart Schermer is chair (ad interim) of the UN/CEFACT Legal Group.
2 See: http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce.html

usinesses and governments. The goal of a single window for international trade is to provide a single
point of entry for all of these different data, thereby reducing costs and simplifying the administrative
processes.
By streamlining the administrative processes involved in the international trade of goods, a single window
offers the potential to provide enhanced efficiencies and cost savings that can significantly stimulate
global commerce. Examples of services provided by existing single windows are: the submission,
processing, and return of customs declarations (Mauritius), application for import and export licenses
(Sweden), and the electronic submission of cargo manifests (Holland). 3
The United Nations Centre for Trade Facilitation and Electronic Business (UN/CEFACT), whose mission
is to improve the ability of business, trade and administrative organizations to exchange products and
relevant services effectively, has embraced the concept of a single window for international trade. 4 To
stimulate the creation of single windows throughout the world UN/CEFACT has issued Recommendation
No. 33: Recommendation and Guidelines on establishing a Single Window to enhance the efficient
exchange of information between trade and government. 5 The Recommendation describes a single
window as: “a facility that allows parties involved in trade and transport to lodge standardized
information and documents with a single entry point to fulfill all import, export, and transit-related
regulatory requirements.”
While a single window does not necessarily imply the implementation and use of ICTs, the concept of a
single window does, to some extent, flow forth from the idea of networked organizations where
information can easily flow from organization to organization. Indeed, the feasibility of a single window
can be greatly enhanced if governments identify and adopt relevant ICTs for use in their single window
implementations.
Different types of single windows
Single window facilities can be implemented in a number of ways. The most ‘basic’ type of single
window is a national single window where a single authority receives information from traders and other
parties involved in international trade, either on paper or electronically, and disseminates this information
to all relevant governmental authorities. A more advanced type of single window facility is a single
automated system for the collection and dissemination of information. Such a system integrates the
electronic collection, use, dissemination, and storage of data related to international trade.
Trader
Freighter
Agent
Customs
Health
National Security
Agriculture
Figure 1. Graphical representation of administrative processes without a single window
3 For a complete overview of single window facilities and the services they offer visit the UN/CEFACT single window
repository at: http://www.unece.org/cefact/single_window/welcome.htm
4 The United Nations Centre for Trade Facilitation and Electronic Business (UN/CEFACT) supports activities dedicated to
improving the ability of business, trade and administrative organizations, from developed, developing and transitional
economies, to exchange products and relevant services effectively. Its principal focus is on facilitating national and
international transactions, through the simplification and harmonisation of processes, procedures and information flows, and
so contribute to the growth of global commerce. It encourages close collaboration between governments and private
business to secure the interoperability for the exchange of information between the public and private sector. For more
information about UN/CEFACT visit: http://www.unece.org/cefact/
5 See: http://www.unece.org/cefact/recommendations/rec_index.htm
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Figure 2. Graphical representation of a national single window facility
While single window facilities can be operated on the national level (i.e. for use with the governmental
bodies of a single country), single window facilities can also cooperate on an international level. In such
case, information submitted to a national single window can be forwarded to other national single
window facilities thereby further reducing administrative costs. An example of an international single
window is the ASEAN single window for international trade. 6
Figure 3. Graphical representation of an international single window facility
Beyond the Single Window – “Paperless Trade”
While this paper is focused on the concept of the international single window for trade, it is useful to
recognize the broader context in which single windows operate particularly when considering the use of
ICTs. This broader context is described in the ongoing work at CEFACT as the CEFACT International
Supply Chain Reference Model. As you can observe from the diagram below, this model contemplates
the wider range of parties to international business transactions including not only the typical B2G and
G2G connections of the international single window, but also the wide range of B2B relationships and
transactions that can be part of the global supply chain in international trade.
6 See: Agreement to Establish and Implement the ASEAN Single Window, http://www.aseansec.org/18005.htm
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Figure 4. UN/CEFACT International Supply Chain Reference Model
As can easily be noted, there are a broad range of legal issues that can be anticipated within this broader
model. In the traditional “paper” world, most of these issues are clear and there are existing technical and
legal solutions for various elements of these transactions. Where, however, countries move towards
models of “paperless trade” and the use of ICTs, particularly in the international context, new issues
emerge that need resolution. At least one such issue related to the electronic transferability of documents
of title is briefly noted below. 7
3. Legal Issues
While single window facilities may provide substantial benefits both to governments and businesses,
there are various legal issues that need to be addressed in order to ensure that single windows operate
correctly and safely. Essential to all single window operations is the transparency and security of data
exchange. A sound legal regime, which regulates the data collection, access and distribution, and clarifies
the privacy and liability regimes, makes it possible to create a solid basis for the operation of the facility
and to build a relationship of trust between all stakeholders.
The Legal Group and the International Trade Procedures Working Group (ITPWG-TBG15) of
UN/CEFACT have identified numerous legal issues that may arise in the context of single window
development and operation. These legal issues will be examined in the forthcoming UN/CEFACT
Recommendation 35 on Legal Framework for International Trade Single Window.
While an exhaustive discussion of the potential legal issues related to single windows is not possible in
this paper, a sampling of relevant legal issues would include at least the following:
Establishment of a single window
Single window facilities can be established in a number of different ways, not only from a technological
viewpoint, but also from an organizational viewpoint. The way in which a single window is structured
plays an important role with respect to possible legal issues that may arise. Single windows can be
established by governmental organizations (such as the customs authorities), private businesses, or
public-private partnerships. For each of these different organisational forms, the authority and mandate of
the single window needs to be established clearly in national law. Furthermore, when multiple
organizations take part in the establishment and operation of the single window it is important to have a
formal agreement between the parties involved in the creation and operation of the single window that
defines the different roles and responsibilities. Finally, it is necessary to establish “end user agreements”
with the users of the single window facility (i.e., with freight forwarders, agents, traders, banks, et
cetera). When national single window facilities cooperate on an international level, bi-lateral or multilateral
agreements often need to be established to govern the operations of each single window and that
take into account a variety of legal issues that may arise to ensure “legal interoperability” between these
single windows.
Identification, authentication, authorization
7 See infra, Section 4, The role of UNCITRAL – Moving to the e-Future
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Given the fact that processing data is the primary role of a single window facility, issues of
identification, authentication, and authorization will be of great importance. The process of
identification, authentication, and authorization applies to different actors in the single window arena.
They include, among others: the single window facilities themselves, the users of the single window
facilities, the organizations that are part of the single window environment, and their respective
employees. 8
When single window facilities from different jurisdictions wish to exchange data, it is necessary to have
common, mutually recognized mechanisms for identification, authentication and authorization for
transactions being processed through each single window involved. 9
Data protection
Within a single window facility the issue of data protection is also of particular importance. Data
protection is concerned with issues such as the access to data, the integrity of data, and the accuracy of
data. Without proper mechanisms for the protection of data, single window facilities present major risks.
To this end, adequate security and access protocols need to be established through the identification,
authentication, and authorization mechanisms mentioned above.
The issue of data protection is closely related to that of privacy (i.e., personal data protection). When
personal data is processed it must be determined whether this is done in compliance with all relevant
privacy and personal data protection laws. In the context of international single windows that share data
between different countries, this provision is even more relevant. However, the right to privacy is
interpreted differently in various parts of the world, and as such data protection law differs throughout the
world. The highest level of international consensus is reflected in the OECD Guidelines on the Protection
of Privacy and Transborder Flows of Personal Data. 10 However, these guidelines are not binding. When
single windows cooperate on an international level, it is of importance to examine and consider how
differing national (or regional) data protection regimes might be harmonized or at least accommodated in
bilateral or multilateral agreements between countries participating in international single window
operations.
Liability issues
The use of inaccurate, incomplete, or incorrect data by users of the single window facility could lead to
damages. 11 Due to the nature of single window facilities it is possible that the reuse of inaccurate,
incomplete, or incorrect data could lead to multiple instances where damages are incurred. As such, it is
necessary to consider and address liability issues in the contexts of national and international legal
recourse and indemnities for damages suffered.
Moreover, it is necessary to provide audit trails through logging mechanisms. If proper logging
mechanisms are not implemented it will be difficult, if not impossible, to establish responsibility for
incomplete, inaccurate, or (incorrectly) altered data. In this area, electronic signatures or other security
mechanisms may play an important role. 12
Competition
The structure of single window operations may also raise antitrust and protectionism concerns which
may inhibit the use of single window by those who might otherwise benefit from it. Additionally,
8 See generally, A/CN.9/630 - Possible future work on electronic commerce - Comprehensive reference document on
elements required to establish a favourable legal framework for electronic commerce: sample chapter on international use of
electronic authentication and signature methods, http://www.uncitral.org/uncitral/en/commission/sessions/40th.html. This
note was prepared by the UNCITRAL Secretariat for the Commission’s Plenary Session from 25 June to 6 July, 2007.
9 Naturally, there may be international single window environments that contemplate, for example, a regional single
window operator through which data is exchanged between national single window facilities.
10 Recommendation of the Council concerning guidelines governing the protection of privacy and the transborder flow of
personal data (OECD, 23 rd September 1980)
11 Additionally, damages may result from a variety of other causes such as data protection and privacy breaches.
12 See supra, n.7
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countries should consider their obligations under the General Agreement on Trade and Tariffs when
establishing and operating single window facilities. 13
Electronic documents
The functional equivalence of electronic documents to paper documents and the acceptance of their
evidentiary value in court is of great importance for the future development of single window facilities.
As such, UNCITRAL’s Model Law on Electronic Commerce (1996) and its Convention on the Use of
Electronic Communications in International Contracts (2005) are highly relevant to the operation of
single window facilities. While UN/CEFACT’s Recommendation 33 and its forthcoming
Recommendation 35 can be applied to the non-automated single window environments, those countries
that seek to move towards e-trade or “paperless trade” are encouraged to consider adoption of these
UNCITRAL texts for creating both their domestic and internationally-oriented legal infrastructure for
their ICT environment.
4. The role of UNCITRAL – Moving to the e-Future
Given the brief overview of key legal issues noted in this paper, we may now discuss whether and how
work may be undertaken by UNCITRAL in its role as the core UN body for international trade law and in
particular, to facilitate the establishment and operation of single window facilities. We can distinguish
between two different broad types of action when it comes to addressing the legal issues: 1) further
harmonization of the legal framework in the context of single windows, and 2) raising awareness,
providing education, and guiding implementation of legal considerations within single windows.
Further harmonization of the legal framework
The mission of UNCITRAL is the facilitation of international trade through the harmonization and
unification of international trade law. In light of the legal issues that may arise in the context of single
window operation, it appears that the liability, authentication, and the legal status of electronic documents
are amongst the issues that have been closest to the work program of UNCITRAL in the area of electronic
commerce.
Many of the legal issues important to the international single window are addressed in the existing
UNCITRAL model laws and conventions related to electronic commerce. Therefore, to a large extent, the
existing model laws and conventions provide an important legal framework for the operation of single
window facilities. 14 When we look only at the B2G and perhaps G2G aspects of the international single
window environment, the need for a new international framework for the operation of single windows
may be limited. Moreover, it is important to note that many of the legal issues involved in the
establishment and operation of both national and international single windows can be addressed in
contracts, memoranda of understand, for example, between government agencies, and/or bilateral and
multilateral agreements between individual States and regions that seek to implement regional single
window facilities for trade between them.
However, there are several areas (and undoubtedly others) in which international harmonization may be
lacking. One revolves around issues related to personal data protection. While there may not be many
situations involving single window operations where “personal” data, we recognize that such issues have
been addressed at the national and even regional level. 15 It is not certain, however, that some cross-border
transactions may involve such data given the variety of emerging national and regional privacy models
emerging in recent years. Generally, UNCITRAL’s work has focused on international commercial and
trade law and not in the area of international harmonization and unification of personal data protection
law. It should be noted, however, that UNCITRAL considered work in this area at its 39 th Plenary Session
in 2006. In a paper on possible future work in the area of electronic commerce the UNCITRAL
Secretariat suggested that this issue might be considered by the Commission as an area in which work
13 See: http://www.wto.org/
14 It might be noted, however, that the limited number of States that have actually ratified the UNCITRAL model law on
electronic signatures suggests that de facto harmonization in the area of identification, authentication, authorization, does not
yet exist.
15 See, e.g., the EU Data Privacy Directive.
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might be undertaken. 16 However, given the scope of personal data protection law (which is broader than
international trade law), and the activities of other international bodies such as the Internet Governance
Forum, the ICC and the OECD, among others in this area, as well as legislation at the domestic and
regional levels, it seems that at this point in time UNCITRAL may not play a leading role in the
international harmonization of personal data protection law.
An area in which harmonization is necessary is the electronic transferability of documents of title, a topic
that is closely related to the functional equivalence of electronic documents. As noted earlier, the simplest
view of the single window is one in which we deal with B2G and G2G transactions. However, looking
towards the future, a broader trade facilitation viewpoint would suggest that this aspect is but one element
of the elements of global supply chain networks. Further, and in the single window contexts, some
countries 17 and regional country groups have developed a more strategic vision for their single window
programs that includes, for example, other parties to international business transactions in goods, for
example, financial institutions, transport operators, intermediaries of various types and so on. In effect,
they have moved beyond the B2G and G2G aspects of the single window model and looked at the longerterm
B2B and “paperless trade” aspects of trade development and facilitation. In this context, it seems
clear that there is no internationally harmonized solution. Given the expertise and knowledge resources
of UNCITRAL in this field, it may be very beneficial for it to consider developing and expanding its
work in this area in the future.
Awareness, education and implementation
While the legal framework for international trade and electronic commerce established by UNCITRAL is
adequate at an abstract level, the actual implementation and interpretation of the legal framework in the
context of single window facilities is an area where much work needs to be done. Therefore existing
legislation should be clarified in the context of single window operation.
First of all, if the legal issues involved in the operation of single window facilities are to be addressed
effectively, single window operators must be made aware of the existence of any legal issues, existing
legislation, and possible remedies to these issues. This is as much a ‘legal’ exercise as it is an
organizational and a technical exercise.
Once single window operators are aware of the legal issues that may flow forth from the operation of a
single window facility, they must be offered adequate tools to prevent and address these legal issues. To
ensure that the legal provisions are implemented correctly, tools such as checklists, implementation
guides, and model agreements should be offered to single window operators.
Furthermore, where possible, the provisions of the model laws should be implemented in the technology
that operates the single window facility. At a practical level this means that the legal framework for the
single window and paperless trade are actually implemented in the business processes and the associated
technology.
Given their respective mandates and areas of expertise, UNCITRAL and UNCEFACT are uniquely
positioned to cooperate in this area and ensure that this implementation actually takes place. Looking
towards the future, UNICTRAL and UNCEFACT should therefore further examine how the work of
UNCITRAL can be ‘translated’ by UNCEFACT to both the business processes and the associated
technology.
5. Conclusions
We may conclude that the use of single window facilities benefits international trade. However, certain
legal issues may hamper the development and implementation of single window facilities. t seems clear
that UNCITRAL can and should continue to play an active and vital role in addressing electronic
commerce legal issues in order to facilitate global commerce and the economic growth of developing
countries. At an abstract level this means that the legal framework set forth by UNCITRAL must be kept
up to date and advanced in those areas in which work has been identified here (only briefly). At a more
16 See, “Possible Future Work in the Area of Electronic Commerce”, A/CN.9/604, 47-52 (accessible from
http://www.uncitral.org/uncitral/en/commission/sessions/39th.html.
17 See, e.g., Korean Act on Facilitation of Electronic Trade, Act No. 7751 (23 December 2005.)
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concrete level, this means continued cooperation with UNCEFACT in order to implement the legal
framework in the business processes and the associated technology, the key role that UNCEFACT plays
in this area.
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