Concluding Observations
9.64
With the view of accommodating both manual and electronic handling of bills of exchange by the various participants in payments in international trade, particularly in the footsteps of US legislation and regulation addressing cheques, it is possible to provide, through legislation, an extremely flexible scheme, covering diverse situations and facilitating maximum freedom of movement between paper and image, and original and copy.
Indeed, an environment in which one set of rights and duties is embodied in original paper, its copy(ies), and its electronic image, all of which co-exist (albeit not necessarily in the same hands), is quite unsafe. It is bound to create an ‘explosive’ mixture leading to conflicting legitimate expectations. Moreover, a warranty against double payment has its own limitations. First, as already indicated, it is as good and as reliable as the sender who gives it. Second, it would not cover the payment of an instrument fraudulently ‘manufactured’ out of an image of an authentic instrument.[948] However, technological innovations are inevitable and ought to be addressed by comprehensive, balanced legislation taking into account the legitimate expectations of all participants.9.65
In the final analysis, a move towards complete electronification from end-to-end is premature. A fully electronic bill transaction is a functional equivalent with a one-time negotiable deferred electronic debit transfer. From that perspective, the convergence between the laws that govern those transactions ought to be seriously considered. A cohesive forwardlooking legal framework, consisting of statutory, regulatory, and contractual sources, ought to address debit transfers as a distinct form of payment. However, the deferred EFT is effectively an electronic bill. As indicated, the infinite number of participants spread throughout the globe and their diverse stages of technological development militates against the feasibility of a common and worldwide technological platform. Hence, the law ought to accommodate not only the possibility of an electronic bill, but also the potential conversion of a physical bill to an electronic one, and vice versa, in the life of one such instrument. The BEA ought to be revised to provide for such a robust and flexible framework.