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8 Digital Evidence & Elec. Signature L. Rev. 5 (2011)

handle is hein.journals/digiteeslr8 and id is 1 raw text is: EDITORIAL

'Il faut se m6fier des ingdnieurs: ga commence par la machine d
coudre, ga finit par la bombe atomique'.'
The United Nations Centre for Trade Facilitation and Electronic
Business has been considering adding to its Recommendations, in
particular 'Recommendation 37 -Signed Digital Evidence
Interoperability'.2 According to the United Nations Economic
Commission for Europe Report 2011 (ECE/INF/2o11/1, New York and
Geneva, 2011), at page 80, the Recommendation appears to have
been issued:
'Building upon the success of its Recommendation on Single
Windows for import and export clearance, in 2010, UN/CEFACT
issued three new, supporting recommendations: Recommendation
35 - Establishing a legal framework for international trade Single
Window; Recommendation 34 - Data Simplification and
Standardization for International Trade; and Recommendation 37-
Signed Digital Evidence Interoperability.'
However, the web site of the United Nations Economic Commission
for Europe included a news item dated 18 July 2011, which indicated
that the Recommendation was far from being issued, and it was
decided at the 17th UN/CEFACT Plenary on 7-8 July 2011 to extend the
review period for Recommendation 37 to 12 September 2011.
Although the content of this Recommendation has altered from its
initial iterations, nevertheless the text has the potential to affect laws
across the globe. There are two significant issues in relation to this
Recommendation. The first is the legal status of Recommendations in
general: it is not clear what legal effect, if any, Recommendations
have. The second, and more serious, is that it does not appear that
any lawyer has been involved with the drafting, if indeed, it is even
necessary.
The summary reads as follows:
'The Recommendation defines a set of functional rules that signed
digital evidence should follow, in terms of the organization and the
relationships between the signed content, signatories' certificates
and signatures.'
This is a 'recommendation', yet uses the past tense of 'shall',
indicating the mandatory nature of content of the document. It
follows that it necessary to determine the legal effect, if any, of such
a recommendation.
The Foreword (page 3) reads as follows:
'The Signed Digital Evidence Interoperability Recommendation
aims at increasing the level of interoperability of electronically
1 'It is necessary to be wary of the engineers: it  Council, Recommenda
starts with the sewing machine, it finishes with  Evidence Interoperabil
the atomic bomb', Marcel Pagnol, Critique des (Architecture, Enginee
Critiques, (Nagel, 1949), page 38. Working Group - TBG6
2 The most up-to-date version appears to be  ECE/TRADE/C/CEFACT/
' United Nations Economic and Social Research September 2010).

signed digital evidence in order to facilitate the development of
paperless international trade.
To achieve this goal, the Recommendation defines a set of
functional rules that signed digital evidence should follow, in
terms of the organization and the relationships between the
signed content, signatories' certificates and signatures.
The Recommendation does not deal with the legal aspects of
electronic signatures, which are dealt with at the international
level by other documents such as those published by UNCITRAL.
Neither does it does deal with the semantics, usability or
interpretation of the signed content. This Recommendation does
not conflict with UNECE Recommendation 14 Authentication of
trade documents by means other than signature.
To facilitate the implementation of these rules, annex B gives
examples of technical implementations using some of the most
recent digital evidence standards. This annex may be updated in
the future to take into account other proposed technical
implementations.
Due to the urgent need for improved interoperability in digital
evidence verification, the Recommendation and its annexes are
delivered simultaneously to facilitate the rapid deployment of the
Recommendation.'
The authors have made a number of statements that require
explanation:
i. There is no evidence to suggest that there is a problem relating
to the use of digital documents in international trade.
2. The use of the past tense of 'shall' indicates the mandatory
nature of the document functional rules that signed digital
evidence should follow. The Recommendation appears to
require all documents in digital format to be 'signed' using
digital signatures, yet there is no discussion of how digital
documents used in international trade are presently dealt with
in practice, nor any attempt to indicate how such documents are
accepted into evidence in various legal systems in the event of
litigation between the parties.3
3. There is an assertion that there is an 'urgent need for improved
interoperability in digital evidence verification', yet there is no
discussion of what evidence there is, if any, to indicate that
there is such a need.4

tion no. 37: Signed Digital
ity Recommendation'
ring and Construction
,
2oio/214 dated 27

0 Pario Communications Limited, 2011                                             Digital Evidence and Electronic Signature Law Review, Vol 8  5

0 Pario Communications Limited, 2011

Digital Evidence and Electronic Signature Law Review, Vol 85

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