[ebBP] 7/14/2004: WI-71 isLegallyBinding Resolution Proposed [RSD]

["Monica J. Martin" <Monica.Martin@Sun.COM>]

Discussion|OASIS.ebBP.WI71-Commitments and Enforceability;
Topic|;
Attachment|http://www.oasis-open.org/apps/org/workgroup/ebxml-bp/download.php/6697/ebbp-swedish-input-ubac-summary-v2pt0-042004.txt;

Point|v2.0 ebBP proposed resolution;

mm1@
In the last few months [1], we discussed some of the evolving 
requirements to support international eCommerce and enforceability, and 
the isLegallyBinding attribute in legacy ebBP. Questions raised included:

    * In February 2004 F2F, discussion item was raised when we spoke
      about WI 23 (Business document and envelope with more than one
      document, and substantive business documents and attachments).
    * Does this attribute on the BusinessTransactionActivity more
      accurately infer test or production capabilities? Note that
      flagging test or production does not appear to be interesting or
      applicable at the level of abstraction that ebBP operates.
    * What is the intent of this attribute and what potential
      responsibility does it infer on the technology?

Initial requirements exist:

    * In UBAC, legal conventions are more elaborate than a transaction.
      It is difficult to know that you have accurately mapped the
      contract formation process in the transaction.
    * The isLegallyBinding attribute has existed in ebXML BPSS since
      v1.01 [2-The text is provided below].  This text inline with the
      intent specified in the eCommerce patterns (see under Reference).
      That initial intent premise is still valid. [3]
    * If retained, flags could be placed on binary collaboration to set
      flags that apply to ebMS at a minimum.

Recommendation:

    * The more appropriate boundary appears to surround Intent not
      Binding. 
    * Accurately define the intent of the isLegallyBinding attribute.
      The definition below I believe is fairly concise, in separating
      intent from bound responsibility. I think it should be emphasized
      and extended if required.
    * Propose to change isLegallyBinding to isLegallyEnforceable or
      isLegallyIntent.

Open Items:
1. Quantify how this might affect ebMS or CPPA. With the differentiation 
between intent and binding, I think this may not elicit significant 
changes or issues.
2. Determine if we need an element rather than an attribute in case 
further constraints should be applied. Could the new 'variable' be used 
to apply a constraint?
Would this assist in UBAC requirements?

[1] implementer discussions in April 2004, special session with UBAC, 
editors' F2F (albeit briefly), for example.
[2] Excerpt from ebXML BPSS technical specification: I've highlighted 
parts of the section with <<xxx>>.

"Trading partners may wish to indicate that a Business Transaction 
performed as part of an ebXML arrangement is, or is not,
intended to be binding. A
<<<declaration of intent to be bound>>> is a key element in establishing 
the legal equivalence of an electronic message to
an enforceable signed physical writing. Parties may create explicit 
evidence of that intent by (1) adopting the ebXML
Business Process Specification Schema standard and (2) manipulating the 
parameter ("isLegallyBinding") designated by the
standard to indicate that intent. <<<In some early electronic 
applications, trading partners have simply used the presence,
or absence, of an electronic signature (such as under the XML- DSIG 
standard) to indicate that intent. However, documents
which rely solely on the presence of a signature may or may not be 
correctly interpreted, if there is semantic content
indicating that a so-called contract is a draft, or nonbinding, or the 
like.>>> In ebXML, the presence or absence of an
electronic signature cannot indicate by itself legally binding assent, 
because XML-DSIG signatures are reserved for other
uses as an assurance of sender identity and message integrity.""

[3] Solemnization (Note: I am not rendering any legal opinion or 
definition, just providing the details provide to me on the original 
definition and use of this term. I have spoken with OASIS regarding this 
item.)
==================================
References:
eCommerce Patterns v1.0: 
http://www.ebxml.org/specs/index.htm#whitepapers, See Under Technical 
Reports.

UBAC slides: 
http://www.oasis-open.org/apps/org/workgroup/ebxml-bp/download.php/6584/UBAC_overview_allslides_20040312.pdf
Note: Look specifically at slides 4, 5 and 29 - a shortened set will be 
provided and uploaded.

UBAC input from session:
http://www.oasis-open.org/apps/org/workgroup/ebxml-bp/download.php/6697/ebbp-swedish-input-ubac-summary-v2pt0-042004.txt

UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW (UNCITRAL)
UNCITRAL Model Law on Electronic Commerce with Guide to Enactment, 1996, 
with additional article 5 bis as adopted in 1998
<http://www.uncitral.org/english/texts/electcom/ml-ecomm.htm>

United Nations Convention on Contracts for the International Sale of 
Goods (Vienna 1980) ("CISG")
<http://www.uncitral.org/english/texts/sales/CISG.htm>

A/CN.9/WG.IV/WP.90 - Possible future work on electronic commerce - 
Transfer of rights in tangible goods and other rights
<http://www.uncitral.org/english/workinggroups/wg_ec/wp-90e.pdf>

TRADE FACILTATION RECOMMENDATIONS INCLUDING ICC
http://www.unece.org/cefact/trafix/bdy_recs.htm
==================================
@mm1