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Geoffrey Wynne and former of counsel, Jacqueline Cook, in our London Trade & Export Finance Practice, have written "The Electronic Trade Documents Act (ETDA) 2023: the key to the future?," an article first published by Butterworths Journal of International Banking and Financial Law (JIBFL) in October 2023.

The article focuses on the newly-passed ETDA and looks at "some areas of the Act and the effect of the Act in the context of trade and trade finance" and how the ETDA gives certain documents used in trade and trade finance the same legal status and protection as the equivalent documents in paper form in the UK.

Here are the key points:

  • English law is leading the way in the adoption of solutions to facilitate the digitisation of trade.
  • The possession problem under English law meant that physical possession of the document was preventing the trade and trade finance industry moving into the digital era.
  • The ETDA does not give a definitive list of documents considered to be electronic trade documents having the same effect as the equivalent paper trade documents, yet it permits flexibility for the future.
  • It is the functionality of the reliable system to achieve the legal status which is key to establishing an electronic trade document under the ETDA.

As Geoff and Jacqueline set out in the article: “Much of the detail on implementation has been left to users. Industry standards and voluntary codes of conduct are likely to play a part in how, and the extent to which, the trade and trade finance industry adopt the Act and the use of electronic trade documents after 20 September 2023. The Act has two functions, to clear the English law “blocker on possession” and to facilitate the use of electronic trade documents.”

For advice in navigating the use and implications of the ETDA, please contact Geoffrey Wynne (gwynne@sullivanlaw.com).

The article can be read in full here.