This book provides a deeper understanding of electronic evidence and its use in civil and commercial dispute resolution. The explosive growth of information technology has had major impacts on the development of the economy, society and also on the improvement of legal proceedings with the use of modern technology in all areas of criminal and civil procedures.
This book focuses on the current provisions of UNCITRAL, the European Union, Germany and Vietnam concerning electronic evidence in civil and commercial dispute resolution. It analyses the notion and the basic aspects of evidence and electronic evidence and explores the process of finding electronic evidence. Further, it discusses how the effectiveness of finding electronic evidence can be reconciled with a respect for fundamental rights, in particular with personal privacy and personal data protection. The book subsequently addresses the authentication and admissibility of electronic evidence; the evaluation of electronic evidence and the burden of proof; and the challenges of using electronic evidence in civil and commercial dispute resolution. Finally, it puts forward proposals for promoting the use of electronic evidence in these contexts.
As the book focuses on the current texts of UNCITRAL and the civil procedure legislation of the European Union, Germany and Vietnam, it relies on a comparative method which deals with the most significant provisions of the above legislation.
Author(s): Quynh Anh Tran
Series: European Yearbook of International Economic Law, 27
Publisher: Springer
Year: 2022
Language: English
Pages: 304
City: Cham
Preface
Contents
About the Author
Acronyms
1 Introduction
1.1 Research Problems and Objectives
1.2 The Scope and Structure of the Book
Reference
2 The Legal Sources of UNCITRAL, the EU, Germany and Vietnam on Electronic Evidence in Civil and Commercial Dispute Resolution
2.1 The Legal Provisions Developed by UNCITRAL on Electronic Evidence
2.1.1 The UNCITRAL Legal Texts on Electronic Commerce
2.1.1.1 The UNCITRAL Model Law on Electronic Commerce of 1996 (Additional Article 5 Bis Adopted in 1998)
2.1.1.2 The UNCITRAL Model Law on Electronic Signatures of 2001
2.1.1.3 The United Nations Convention on the Use of Electronic Communications in International Contracts of 2005
2.1.1.4 The UNCITRAL Model Law on Electronic Transferable Records of 2017
2.1.2 The UNCITRAL Legal Texts on Arbitration
2.1.2.1 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958
2.1.2.2 UNCITRAL Model Law on International Commercial Arbitration of 1985 (Amended in 2006)
2.1.2.3 UNCITRAL Arbitration Rules
2.1.3 UNCITRAL Technical Notes on Online Dispute Resolution
2.2 The Legal Sources of the EU on Electronic Evidence in Civil Proceedings
2.2.1 European Legislation on Electronic Commerce
2.2.1.1 Directive 1999/93/EC of 13 December 1999 on a Community Framework for Electronic Signatures (Directive on Electronic Signatures)
2.2.1.2 Regulation 910/2014 of 23 July 2014 on Electronic Identification and Trust Services for Electronic Transactions in the Internal Market and Repealing Directive 1999/93/EC (eIDAS Regulation 910/2014)
2.2.1.3 Directive 2000/31/EC of 8 June 2000 on Certain Legal Aspects of Information Society Services, in Particular Electronic Commerce, in the Internal Market (Electronic Commerce Directive)
2.2.1.4 Directive 2011/83/EU of 25 October 2011 on Consumer Rights, Amending Council Directive 93/13/EEC and Directive 1999/44/EC and Repealing Council Directive 85/577/EEC and Directive 97/7/EC (Directive on Consumer Rights)
2.2.1.5 Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation—GDPR)
2.2.2 European Legislation on Civil Procedure
2.3 The Autonomous Law of Germany on Electronic Evidence in Civil Proceedings
2.3.1 German Autonomous Law on Electronic Commerce
2.3.2 German Autonomous Law on Civil Procedure
2.4 The Autonomous Law of Vietnam on Electronic Evidence in Civil Proceedings
2.4.1 The Historical Development of Vietnamese Civil Procedure Law
2.4.2 The Current Law on Civil Procedure
2.4.3 The Vietnamese Law on Information Technology and Electronic Commerce
2.5 Interim Conclusion
References
3 Fundamental Principles of Civil Procedure and the Basic Principles Relating to Evidence in Civil Procedure
3.1 Fundamental Principles of Civil Procedure
3.1.1 The Principle of Free Disposition of the Parties
3.1.2 The Principle of Parties' Responsibility to Present Evidence (or Adversarial Principle) in Contrast with the Inquisitorial Principle
3.1.3 The Principle of Orality
3.1.4 The Principle of Public Hearing
3.1.5 The Principle of Fair Trial
3.2 The Basic Principles Relating to Evidence in Civil Procedure
3.2.1 The Principle of Relevance
3.2.2 The Principle of Directness
3.2.3 The Principle of Free Assessment of Evidence
References
4 Basic Issues of Evidence and Electronic Evidence in Civil and Commercial Dispute Resolution
4.1 Basic Issues of Evidence
4.1.1 The Concept of Evidence
4.1.2 The Relevance and Admissibility of Evidence
4.1.3 Main Types of Evidence
4.1.3.1 Documentary Evidence
4.1.3.2 Observation and Inspection of Persons and Things: Visual Inspection
4.1.3.3 Witness Testimony
4.1.3.4 Expert Testimony
4.1.3.5 Party Testimony
4.2 Electronic Evidence as a New Form of Evidence in Modern Jurisdiction
4.2.1 The Notion of Electronic Evidence
4.2.2 The Basic Characteristics of Electronic Evidence
4.2.2.1 The Dependency of Electronic Evidence on Digital Devices and Information Technology
4.2.2.2 The Duplicability of Electronic Evidence
4.2.2.3 The Changeability and Manipulation of Electronic Evidence
4.2.2.4 The Persistence of Electronic Evidence
4.2.2.5 The Possibility of Being Obsolescent
4.2.2.6 The Global Dispersion and Searchability
4.2.2.7 The Cheap and Easy Storage of Electronic Evidence
4.2.3 The Sources of Electronic Evidence
4.2.3.1 Digital Devices
4.2.3.2 Networks
4.3 Interim Conclusion
References
5 The Significant Types of Electronic Evidence
5.1 General Remark: The Concept of ``Electronic Document''
5.1.1 The Notion of Electronic Document
5.1.2 Differences Between Electronic Document and Paper Document
5.1.3 Electronic Documents Under the UNCITRAL Legal Texts and the Civil Procedure Laws of the EU, Germany and Vietnam
5.1.3.1 Electronic Documents Under the UNCITRAL Legal Texts
5.1.3.2 Electronic Documents Under EU Law and German Civil Procedure Law
5.1.3.3 Electronic Documents Under Vietnamese Law
5.2 Other Types of Electronic Evidence
5.2.1 Email
5.2.2 Short Message Service and Instant Messaging
5.2.3 Audio Records and Video Records
5.2.4 Website Data
5.2.5 Posts and Communications on Social Networking Sites
5.3 Interim Conclusion
References
6 Finding Electronic Evidence
6.1 The Process of Finding Electronic Evidence in Civil and Commercial Dispute Resolution
6.1.1 Identifying the Electronic Evidence Which Should be Taken and the Sources of That Electronic Evidence
6.1.2 Determining the Methods and Technical Means to Gain Electronic Evidence
6.1.3 Preservation and Collection of Electronic Evidence
6.1.3.1 Preservation of Electronic Evidence
6.1.3.2 Collection of Electronic Evidence
6.1.3.3 An Analysis of the Obtained Electronic Evidence
6.1.4 Producing and Storing Electronic Evidence
6.1.4.1 Producing Electronic Evidence
6.1.4.2 A Report of Finding Electronic Evidence
6.1.4.3 Storing Electronic Evidence
6.2 Finding Electronic Evidence from Significant Types of Electronic Sources
6.2.1 Finding Electronic Evidence from Digital Devices
6.2.1.1 The Package and Label of the Digital Devices and the Digital Components
6.2.1.2 The State of Digital Devices and Digital Storage Devices
6.2.1.3 Technical Issues of Digital Devices and Digital Storage Devices
6.2.1.4 Storage of Electronic Evidence and Digital Devices, Digital Components
6.2.2 Finding Emails and Instant Messages
6.2.3 Finding Electronic Evidence on Accessible Networks
6.2.4 Finding Electronic Evidence from Websites
6.2.5 Finding Electronic Evidence from Storage Networks
6.2.6 Finding Electronic Evidence from Social Networking Sites
6.3 Illegally Obtained Electronic Evidence
6.4 Balancing the Effectiveness of Finding Electronic Evidence and the Respect for Personal Privacy Protection and Data Protection
6.4.1 An Overview of the Law on Personal Privacy Protection and Data Protection
6.4.1.1 EU Law on Personal Privacy Protection and Data Protection and the European Convention on Human Rights
6.4.1.2 German Autonomous Law on Personal Privacy Protection and Data Protection
6.4.1.3 The Vietnamese Autonomous Law on Personal Privacy Protection and Data Protection
6.4.2 The Requirement of Balancing the Effectiveness of Finding Electronic Evidence and the Respect of Personal Privacy Protection and Data Protection
6.5 Interim Conclusion
References
7 The Authentication of Electronic Evidence
7.1 Introduction of Authentication of Electronic Evidence
7.1.1 The Notions of Authentication of Evidence and Authentication of Electronic Evidence
7.1.2 Requirements of Authentication and the General Process of Authenticating Electronic Evidence
7.1.2.1 Identifying the Characteristics of the Electronic Evidence that Can Authenticate Itself
7.1.2.2 Describing a Process or System which Produced that Electronic Evidence
7.1.2.3 Using the Control Policy of an Organization
7.1.2.4 Testimony of a Witness Who Knows of Electronic Evidence
7.1.3 Main Problems in Authenticating Electronic Evidence
7.2 An Electronic Signature as Proof of the Authenticity of Electronic Evidence
7.2.1 Definition and the Legal Functions of a ``Signature'' and an ``Electronic Signature''
7.2.1.1 The Notion and Legal Functions of a ``Signature''
7.2.1.2 The Notion and Legal Functions of an ``Electronic Signature''
7.2.2 Electronic Signature Under the UNCITRAL Legal Texts
7.2.2.1 Electronic Signatures Under the UNCITRAL Model Law on Electronic Commerce
7.2.2.2 Electronic Signatures Under the UNCITRAL Model Law on Electronic Signatures
7.2.2.3 Electronic Signatures Under the United Nations Convention on the Use of Electronic Communications in International Contracts
7.2.2.4 Electronic Signatures Under the UNCITRAL Model Law on Electronic Transferable Records
7.2.3 Electronic Signatures Under EU Law and German Autonomous Law
7.2.3.1 EU Directive on Electronic Signatures 1999 and the German Autonomous Law on Electronic Signatures Before the eIDAS Regulation 910/2014
7.2.3.2 Electronic Signatures Under eIDAS Regulation 910/2014
7.2.4 Electronic Signatures Under the Vietnamese Autonomous Law
7.3 An Overview of Authentication of the Significant Electronic Evidence
7.3.1 The Authentication of Electronic Document and Its Printout
7.3.2 The Authentication of Emails and Instant Messages
7.3.3 The Authentication of Printouts or Screenshots of Websites
7.3.4 The Authentication of Electronic Evidence Obtained from Social Networking Sites
7.4 Interim Conclusion
References
8 The Admission of Electronic Evidence in Civil and Arbitral Proceedings
8.1 The Admissibility of Electronic Evidence
8.2 Illegally Obtained Electronic Evidence and the Question of Admissibility
8.2.1 Law on Illegally Obtained Electronic Evidence
8.2.2 Should Illegally Obtained Electronic Evidence be Rejected or Admitted?
8.2.3 Main Grounds for Admitting Illegally Obtained Electronic Evidence
8.3 Interim Conclusion
References
9 Evaluation of Electronic Evidence and the Burden of Proof
9.1 Evaluation of Electronic Evidence in Civil and Arbitral Proceedings
9.1.1 The Free Assessment of Electronic Evidence
9.1.2 The Equal Treatment Between Electronic Evidence and Other Types of Evidence
9.1.3 The Fairness Treatment of Electronic Evidence Between the Parties
9.1.4 The Probative Value of Electronic Evidence Is Decided by the Court in Accordance with National Law
9.2 Issues of Burden of Proof
9.2.1 General Rules on Burden of Proof
9.2.2 Burden of Proof Under the UNCITRAL Legal Texts
9.2.3 Burden of Proof Under the EU and German Laws
9.2.3.1 General Rules
9.2.3.2 Exemptions to the Rules on Burden of Proof
9.2.3.3 Request the Court to Collect Evidence
9.2.4 Burden of Proof Under Vietnamese Law
9.2.4.1 General Rules
9.2.4.2 Exemptions to the Rules on Burden of Proof
9.2.4.3 Request the Court to Collect Evidence
9.3 Interim Conclusion
References
10 Using Electronic Evidence in Civil and Commercial Dispute Resolution: Challenges and Opportunities
10.1 The Challenges of Using Electronic Evidence in Civil and Commercial Dispute Resolution
10.1.1 Technical Challenges from the Evolution of Information Technology
10.1.1.1 The Complex Process of Finding Electronic Evidence
10.1.1.2 The Technical Challenges in Authentication and Admission of Electronic Evidence
10.1.1.3 The Technical Challenges in Presenting Electronic Evidence in the Courtroom
10.1.1.4 The Technical Challenges in Evaluating Electronic Evidence
10.1.2 Challenges of Using and Taking Electronic Evidence from the Legal Perspective
10.1.2.1 The Antiquated Legal Systems
10.1.2.2 The Differences in the National Legal Frameworks Between States
10.2 Enhancing the Use of Electronic Evidence in Civil and Commercial Dispute Resolution: The Way Forward
10.2.1 Proposal on Improving the Use of Electronic Evidence in Civil and Arbitral Proceedings in the EU
10.2.1.1 The Urgent Need for Common Provisions on Electronic Evidence and the Use of Electronic Evidence in Civil and Arbitral Proceedings
10.2.1.2 The Requirements for Adopting Legislation on Electronic Evidence and the Use of Electronic Evidence in Civil and Arbitral Proceedings
10.2.1.3 The Main Contents of the European Legislation on Electronic Evidence and the Use of Electronic Evidence in Civil and Commercial Dispute Resolution
10.2.2 The Present and Future of Using Electronic Evidence in Civil Proceedings in Vietnam
10.3 Interim Conclusion
References
11 Final Conclusion
A List of Legal Texts
United Nations and UNCITRAL
European Union, Council of Europe and Other European Institutions
Germany
Vietnam
Others
List of Cases
Internet
