Les aspects juridiques de la dématérialisation des documents du commerce maritime

Abstract : Dematerialization is a technology-based surgery that involves replacing a tangible physical medium with an electronic process. For example, the dematerialized bill of lading is detached from its historical material medium, namely paper. The passage of the numerical border involves changes and raises interesting questions, which the thesis offer to look from the angle of maritime law. Through an interdisciplinary approach, the concepts are clarified in order to qualify the digital document and show terminological variations and similarities around the concepts of original document, copy, electronic signature, archiving, integrity and authenticity; proposed by the Model Law on Electronic trade and the Model Law on Electronic Signature. The status of the electronic document is analyzed, jointly assessing its probative and informational value. Confronting the principles with practice, the thesis takes the measure of the debate on the dematerialization of negotiable securities. In view of the uncertainties, controversies and contradictions noted, the need for a homogeneous and transversal reform is emphasized in order to better regulate the digitization practices and thus allow genuine recognition of the dematerialization of the document holding the title of ownership. It should be recalled that the point of view proposed is based on the right of civil law tradition, in particular French and African law, given the central place that writing occupies on the evidentiary ground. The technical and legal qualification of the electronic document and the digital copy necessarily require an examination of the notions of support and computer language. In this case, we observe that if these notions are common to the technique and the law, they are not exactly understood in the same way. We will not fail to emphasize the convergences and divergences in this respect and the crucial need to clarify the meaning that we give to concepts when we touch on a technical question such as the dematerialization or proof of legal acts. If the dematerialization posed difficulties in the past, it is because of the medium of writing and the concept of moose electronic. In the context of today, support is ineffective in the face of the concept of functional equivalence. The original is not a notion dependent on the paper or the electronic medium: an original can now be an electronic writing with an electronic signature, the classical notions of writing and signature having been adapted in this sense by the legislator.
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Albert Ndiack Dione. Les aspects juridiques de la dématérialisation des documents du commerce maritime. Droit. Université Panthéon-Sorbonne - Paris I, 2018. Français. ⟨NNT : 2018PA01D049⟩. ⟨tel-02060713⟩



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