The law on electronic trade documents: applying functional equivalence in the Model Law on Electronic Transferable Records and comparable common law jurisdictions

Using the example of the recent developments in the law relating to electronic trade documents (ETDs), this article examines the roles that international trade law plays in enabling digital trade through the application of the principle of functional equivalence in domestic laws and transnational regulation. It analyses the Model Law on Electronic Transferable Records (MLETR) and ETD legislation in the United Kingdom, the USA, and Singapore, and finds that functional equivalence can be applied in two ways—the unified and the dual-track systems—in providing an electronic alternative to the traditional paper transferable documents and instruments (transferable papers) used in global trade. Comparing the approaches employed by these common law jurisdictions in resolving the age-old common law ‘possession problem’ in relation to ETDs, the article recommends the most advantageous template for legal reform on the subject in other common law countries.