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An assessment of the reliability requirement in the Electronic Trade Documents Act
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On 20 September 2023 the Electronic Trade Documents Act (ETDA) came into force. Formerly, in English law, document possession usually required physical possession. Now, the ETDA allows for “electronic trade documents” to be treated as equivalent to traditional “paper trade documents”, if they meet certain “gateway” criteria underpinned by a “reliable system”. In this article, we consider how the English courts are likely to approach interpretating this reliability requirement. Would any flaw in the system, no matter how short-lived and abnormal, render it unreliable? Or would a more detailed systemic analysis be needed? If so, what would that look like?
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