Archives For e-commerce

Kunio Mikuriya - Hindu Times

The Hindu Times reports that the World Customs Organization (WCO) will soon bring out guidelines on ‘cross-border e-commerce’, which will focus on preventing illegal trade as well as addressing the challenges stemming from the ‘digital divide’, according to the WCO Secretary General Kunio Mikuriya.

In an interview to The Hindu on his recent India trip, Mr. Mikuriya said, “We are developing guidelines on e-commerce to see how best Customs can facilitate legitimate trade through that route.” He added, “We [the WCO] will address issues related to digital divide by looking into what is blocking e-commerce trade, and what kind of enabling environment is needed to support developing countries so that they benefit more from e-commerce.”

Terming e-commerce as a “game changer” in global trade that is benefiting small firms and consumers, he said the new guidelines would, however, include provisions to prevent illegal trade and illicit financial flows. This would be ensured through measures that would help strengthen information exchange between Customs administrations of countries as well as collaboration with other government agencies.

The WCO has a Working Group on e-Commerce and four sub-groups. To develop guidelines on cross-border e-commerce, the work packages identified are: ‘trade facilitation and simplification of procedures’, ‘safety and security’, ‘revenue collection’, and ‘measurement and analysis’. According to the UN body ‘UNCTAD’, the value of online trade jumped from $16 trillion to $22 trillion between 2013 and 2015.

“The continuous increase in online trading has raised questions regarding regulation, consumer protection, revenue collection and national security,” according to the WCO’s ‘Study Report on Cross-Border E-Commerce’ (March 2017). “These questions cannot be dealt with individually, but require a common, broad approach by the international Customs community, together with all relevant stakeholders as a whole.”

The WCO said more sophisticated equipment was needed to combat illicit trading through low-value shipments in the postal, express and cargo streams.

“Pre-arrival information on the consignment and the consignee could be of great importance in detecting and intercepting illicit trade. In addition, the improvement of non-intrusive inspection equipment and an increase in the number of trained staff could help to enhance the detection rate of illicit goods,” it said.

In an article on e-commerce, the WCO’s Director of Compliance and Facilitation Ana Hinojosa pointed out that in many countries, there were de minimisthresholds that allow low-value packages to enter a country with little or no duties or taxes, and with much more simplified procedures.

“This has led to clever manipulations by either the shipper or the consumer to avoid the extra charges by splitting invoices, undervaluing the invoices or mis-declaring the items altogether,” wrote Ms. Hinojosa. Another type of manipulation used was to classify the item as something else or claiming a different country of origin for the product, to take advantage of better duty or tax rates, the WCO official said, adding that these distortions had had an impact on many countries’ revenue collection volumes. Therefore, “some countries… are re-evaluating their established thresholds due to the significant implications that the changes brought about by these growing volumes of low-value small packages are having on their fiscal revenues,” observed Ms. Hinojosa. Source: The Hindu, 2 August 2017.

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THE NEW YOUGrowing electronic commerce (E-Commerce) has provided unparalleled opportunities for and has become a game changer in the international trade arena. It has revolutionized the way businesses and consumers are selling and buying goods with wider choices, advanced shipping, payment, and delivery options.  At the same time, E-Commerce, in particular Business to Consumer and Consumer to Consumer (B2C and C2C) transactions, is presenting several challenges to governments and businesses alike.

The WCO Working Group on E-Commerce (WGEC) together with its four Sub-Groups is steadily progressing with the four identified work packages, namely Trade Facilitation and Simplification of Procedures, Safety and Security, Revenue Collection, and Measurement and Analysis with a view to develop recommendations/guidelines on cross-border E-Commerce from a wider facilitation, security or revenue perspective, to collect and disseminate good practices/initiatives, and to enhance/update related WCO instruments and tools.

Given the current focus of the WCO Members and the private sector on this topic, the 215th/216th Sessions of the Permanent Technical Committee (PTC) held a whole day dedicated session on E-Commerce on 5 April 2017. During the ‘E-Commerce Day’, the delegates were provided an update with the work done thus far, as well as, the envisaged work by the four Sub-Groups on respective work packages. A number of valuable suggestions were provided by delegates from policy, business process, and operational perspectives to further enhance the WCO E-Commerce Work Programme with tangible and practical deliverables for providing a concerted and effective response to this growing channel of trade.

In addition, four thematic workshops relating to different dimensions of E-Commerce were organized by the Sub-Groups’ Co-Leads together with other partners. Through these workshops, some interesting facets of e-commerce were explored in detail and a number of interim recommendations were made concerning facilitation, risk management, safety and security, revenue collection, and associated capacity building through enhancement partnerships with all e-commerce stakeholders and augmented public awareness and outreach programmes.

In the course of the panel sessions, a number of collaboration success stories were identified, and they will be captured more formally and shared with interested parties, through the WCO webcorner.

The WGEC Sub-Groups will continue carrying out further work and a consolidated set of interim recommendations will be presented to the July 2017 Sessions of the WCO Policy Commission and Council. Source: WCO

BIMCO E-Bill of LadingPaper bills of lading have been used throughout the world to document and effect international trade for centuries. Yet whilst the world has become increasingly digitalised the paper bill of lading has, on the whole, remained a constant feature of global trade. Its continued use is mainly due to its combination of three legal characteristics that it has developed over time: (i) it is a receipt of the goods carried; (ii) it provides evidence of the terms of the contract of carriage; and (iii) it is a document of title to the goods. It is these characteristics that have, until relatively recently, foiled attempts to replace the paper bill of lading with an electronic equivalent. However, with the inclusion of an electronic bills of lading clause in BIMCO’s NYPE 2015 time charter form, as well as the International Group of P&I Clubs’ approval of the coverage of three electronic trading systems, the dominance of the paper bill of lading may well be coming to an end.

Reed Smith LLP Ship Law blog posts an interesting article in regard to change in law and the impact of e-commerce on bills of lading.

Issues with the paper system
Whilst the paper bill of lading has been used for centuries it is not without its faults, the principal problems being that:

  • Carriers are obliged to discharge the goods carried on production of an original bill of lading: this is particularly problematic today given both the speed of transport and the fact that the cargo may be sold multiple times during carriage. As a result of this the bill of lading is often not delivered to the consignee in time, and the carrier is often required to accept a letter of indemnity. This indemnity does not, however, remove the carriers’ liability under the bill of lading and creates an additional administrative burden and cost to the trade.
  • The paper system is hugely expensive (such cost is estimated to be between 5 – 10% of the value of the goods carried each year).
  • A paper bill of lading may be forged with relative ease and carriers are liable for misdelivery against a forged bill of lading.

Benefits of an electric bill
The electronic bill of lading or e-bill, in theory, addresses many of the flaws of the paper system, bringing with it a number of advantages:

  • It can be sent around the world instantaneously, hugely lowering the administrative burden of trade (especially where cargo is subject to multiple transfers of ownership during carriage).
  • Any amendments or corrections required can be made far more efficiently and cost effectively.
  • Electronic payment systems, and related advances in security, make an electronic system considerably more secure than its paper equivalent. This is obviously subject to cyber issues.

These benefits will cut the administrative costs of trade significantly and reduce, if not eradicate, situations where carriers discharge their cargo against letters of indemnity.

So why so slow on the uptake?
One of the main reasons the widespread use of the e-bill has been slow to proliferate stems from the fact that it is not treated in the same manner, legally, as its paper equivalent. Significantly:

  • A paper bill of lading is a document of title, enabling it to be negotiated and transferred as possession of the bill is evidence of title to the goods. This is not automatically the case at law with an e-bill.
  • The Hague Rules / Hague Visby Rules (HR / HVR) apply to a contract of carriage by reference to the bill of lading, or similar document of title, and it has been less clear whether they would apply to any electronic trading system used. The solution developed to these legal obstacles is essentially a multiparty contract. This takes the form of a set of rules to which users of an electronic trading system are all required to subscribe to use that system. Such rules then set out the specific form of electronic trading documentation to be used and that the consequences of using such documentation shall mirror the position at law as if they were paper bills of lading.

This, however, means that electronic trading systems such as BOLERO, which has been in existence since the 1990s, are only able to function between their members (i.e. those that have agreed to the uniform set of rules and systems that will govern their transactions). Where a member of an electronic trading system enters into a transaction with a non-member, the electronic system cannot be utilised and a paper bill of lading is issued. This feature has limited their growth, as electronic trading systems are only really effective once they have a large number of members, but are not cost-effective for traders to join until they have a large number of members.

The present situation
The benefits of electronic trading systems are particularly tangible to container carriers (as there is often a separate bill of lading for each container carried) and as such have been utilised by liner companies before wider adoption in the industry. However, the efficiencies of electronic trading systems are not confined to the container industry alone and with members of the largest trading companies, trade finance banks, mining companies and oil majors using such systems, it is clear that they are becoming increasingly prevalent in the shipping industry as a whole.

The growth of the use of electronic trading systems in the wider shipping industry is something that BIMCO, by including an e-bills clause in its latest iteration of the NYPE form, has also recognised. In sum the new clause provides that:

  • use of an electronic trading system is at charterers’ option;
  • owners shall subscribe to the system elected by charterers, provided such a system is approved by the International Group of P&I Clubs;
  • charterers shall pay any fees incurred by owners in subscribing to such elected system; and
  • charterers shall indemnify owners for any liabilities incurred arising from the use of the elected system, so long as such liability does not arise from owners’ negligence.

The International Group of P&I Clubs have now ‘approved’ three electronic trading systems (BOLERO, essDOCS and E-title). An ‘approved’ system is one that is found to replicate the legal characteristics of a paper bill (namely (i) as a receipt; (ii) a document of title; and (iii) a contract of carriage which incorporates the HR / HVR). This means that the International Group of P&I Clubs will provide cover for any liabilities arising under carriage covered by these three electronic trading systems (or any such other subsequently ‘approved’ system), provided that such liability would also have arisen under a paper bill. However, members should be advised that risks connected with the use of a non-approved electronic trading system will not be covered.

The use of an electronic trading system does, however, lead to other risks from things such as hacking, systems collapse, e-theft and viruses, none of which are traditionally covered by P&I clubs and would need to be insured separately. In this regard, essDOCS (which is now used throughout 71 countries by over 3,300 companies) has insurance cover of up to USD $20 million per electronic bill of lading for “eRisks” resulting from an electronic crime or electronic system failure.

With the rise in usage of electronic trading systems, the recent judgment in Glencore v MSC (albeit currently under appeal) provides a timely reminder that the release of cargo should only be made in accordance with the contract evidenced by the bill of lading, even where an electronic release system for cargo is being operated. In this instance cargo was released on presentation of a PIN, despite no provisions for this in the bill of lading, two of the released consignments of cargo were misappropriated and the carrier was held liable.

The future?
With the International Group of P&I Clubs’ approval of three electronic systems, the inclusion of an electronic bills of lading clause in BIMCO’s latest NYPE form and the proliferation of the use of electronic trading systems throughout the wider shipping industry, it is clear that the use of electronic trading systems is increasing. Whilst there is no doubt that we can expect teething problems as the industry continues to adapt to such electronic trading systems, and the cyber risks they may bring, it seems that the efficiencies are too great to be ignore. Source: Ship Law log / ReedSmith

WCO Data Model Workshop, Pretoria, South Africa, Dec. 2015

SARS’ EDI and Customs Business Systems representatives with WCO Data Model facilitators Mr. Giandeo Mungroo (2nd from the left) and Ms. Sue Probert (2nd from the right) [Photo – SARS]

Officials of the South African Revenue Service (SARS) last week attended a WCO workshop on the Data Model facilitated by Ms. Sue Probert and Mr. Giandeo Mungroo. The event, held in Pretoria, South Africa was sponsored by the CCF of China as part of the WCO’s Capacity Building endeavours to promote the adoption and use of customs standards and best practice amongst it’s  member states.

The workshop was requested by SARS ahead of new technical and systems developments and requirements informed by SARS’ new Customs Control and Duty Acts. Moreover, there are also political ambition to institute a Border Management Agency for the Republic of South Africa. All of this requires that SARS Customs has a robust electronic tool to assist the organisation in mapping national data requirements according to specific needs.

Besides the use of a value added Data Model tool – GEFEG, it is imperative for the organisation to develop capacity in the knowledge and understanding of the WCO Data Model. SARS has successfully EDI (Electronic Data Interchange) for the last 15 years with various local supply chain trading partners and government agencies. Over the last few years SARS has been actively pursuing and promoting IT connectivity with regional trading partners with the express purpose to extend the benefits of eCommerce across borders.

GEFEG.FX software is used to model data formats and develop implementation guidelines for data interchange standards such as UN/EDIFACT. It is a software tool that brings together modelling, XML schema development, and editing of classic EDI standards under a unified user interface, and supports the development of multilingual implementation guidelines.

Version 3 of the WCO Data Model brought about a distinct shift towards an ‘all-of-government’ approach at international borders with the introduction of the GOVCBR (Government Cross Border Regulatory) message. The message and underlying data requirements facilitate the exchange of customs and other government regulatory information to support a Single Window environment.

WCO Data Model not only includes data sets for different customs procedures but also information needed by other Cross-border Regulatory Agencies for the cross-border release and clearance at the border. The WCO Data Model supports the implementation of a Single Window as it allows the reporting of information to all government agency through the unique way it organizes regulatory information. This instrument is already 10 years old and is seeing increased use by WCO members.

Amongst the benefits derived from the workshop, SARS staff acquired the following competencies that will not only aid their work but business user support as well –

  • Competence in operating the tool to build a source control collaborative environment to support national and regional harmonization;
  • Competence to build a base to conduct national/ regional data harmonization based on the WCO Data Model to support national Single Window implementation as well as Regional Integration;
  • Competence to build systems/ electronic interfaces between Customs and its partner government agencies including a Border Management Agency; and
  • Provide needed competence to develop, maintain and publish national and regional information packages based on the WCO Data Model.