Regulation of data provision and digital commerce and other news of UNCITRAL Working Group IV

From 20 to 24 October 2025, the International and Comparative Law Research Center (ICLRC) participated as an observer in the 69th session of Working Group IV: Electronic Commerce of the United Nations Commission on International Trade Law (UNCITRAL The United Nations Commission on International Trade Law (UNCITRAL) develops conventions, model laws, guides and other instruments in the field of international trade).

Materials on the work of the Working Group are available on our website:

• • on the 65th session
  • on the 67th session
  • on the 68th session
  • ICLRC’s submission to the 69th session

Active and passive data provision

Representatives of State delegations and experts continued to work on the new instrument on data transactions.

The key issue throughout the session was the observation made by many delegations that it was necessary to preserve distinctions in the legal regime of active and passive data provision. In the latter case, the supplier has no obligation as such to provide any data: access is granted by enabling the recipient to access the source of such “passive” data. If, however, data provision cannot be characterised as passive, it is presumed to be active, and all provisions apply to it without exception.

Delegations proposed that the Secretariat formulate a definition of passive data provision to determine what would be covered by this variant. The proposed draft definition referred to the following elements:

• the data supplier allows the data recipient to access data (or the data source) by means for which the data recipient is responsible
• the subject matter of the transaction is access to data (and not the data itself – ICLRC) created through a value (product, service, etc.) provided by the data supplier, in exchange for the data supplier obtaining access to a value provided by the data recipient
• the data supplier does not undertake any obligation to create or provide data of any particular quality or quantity
• the data supplier is not responsible for the technical means of collecting, processing or transferring data to the data recipient
• the data supplier has no significant influence over the terms of the transaction

The proposed provisions largely reflect the approaches set out earlier in the ALI–ELI Principles for a Data Economy, developed in 2021 by the American Law Institute and the European Law Institute.

During the discussion of the draft articles, the Working Group also revisited the question of the relevance of various obligations of the parties to passive data provision. It was noted that, in the case of a contract for passive data provision, the only obligation of the data supplier is to permit the data recipient to access the data or the data source by means provided by the recipient under the contract, and not to obstruct such access. The Secretariat was tasked with determining where in the draft to place the new paragraph and the working definition of passive data provision.

Delegations also discussed the need to clarify the wording of Article 2 (Scope of application), in particular to exclude from the potential scope of the instrument consumer contracts and so-called functional and representative data. For this purpose, the Working Group was invited to refer to the ALI–ELI Principles, where “functional data” are defined as “data whose main purpose is to enable certain functions (for example, a computer program)” and “representative data” as “data whose main purpose is to represent other assets or value (for example, crypto-assets)”. As regards consumer contracts, it was noted that the instrument cannot cover agreements under which the consumer acts as the data supplier.

It was emphasised that the relationship between Articles 5 (Obligation to provide data) and 6 (Manner of data provision) should be clarified. In general terms, it was proposed that Article 5 concerns “what” is to be provided (i.e., the data), Article 6 — “how” the data are provided, and Article 7 — “when”. It was also suggested that the requirements for data use under Article 8 might include provisions on (a) security, (b) protection against accidental loss, (c) confidentiality, and (d) use of data in a manner consistent with restrictions intended to prevent violations of the data supplier’s rights.

Form of the future instrument

On the final day of the session, the Working Group discussed the format of the future instrument. The option of a convention was dismissed, but it was decided to choose later between a model law and a legislative guide. Delegations and expert organisations will continue discussions at the next session of the Working Group in April 2026, and the final text is expected to be submitted for adoption at the UNCITRAL session in summer 2026.

Other UNCITRAL work

The Secretariat noted that preparatory work on the topic of paperless trade is ongoing, and a colloquium will be held in Vienna on 20–23 January 2026 to explore possible updates to UNCITRAL texts in this regard, as well as a colloquium on digital payments.

It was further noted that the relevance of UNCITRAL texts on electronic commerce is enhanced by the Secretariat’s continuous participation in the work of the data governance group established under the Global Digital Compact.

In addition, in accordance with a request made by the Commission at its last session, the Secretariat has finalised and submitted for publication a guidance document on legal issues arising in connection with procurement using distributed ledger technology and the application of relevant UNCITRAL texts.

Research is also being conducted jointly with experts on the legal aspects of the use of decentralised autonomous organisations.

Work is continuing on the possible extension of UNCITRAL’s texts on secured transactions to new types of assets such as digital assets and data (when used as collateral). A conference will be held in Hong Kong (China) on 27–28 November 2025, followed by a colloquium on the same topic in February 2026.

The Working Group also heard information about a project implemented jointly with the Chinese Society of Private International Law entitled the “Hangzhou Initiative”, under which a set of guiding principles was published on the development and application of platform governance rules aimed at reducing legal uncertainty in the platform economy. On 8–9 December 2025, a conference on digital platforms will be held in Dubai (United Arab Emirates), followed by another event in Madrid in April 2026.

ICLRC continues to monitor the work of Working Group IV and to participate in UNCITRAL activities in the field of digital trade.