Introduction
This Part deals with the question of the enabling legal environment for the Single Window. In the
absence of enabling laws and regulations, the Single Window could face hurdles. As the Single
Window initiative takes shape, the project leadership must assess any gaps regarding legislation.
Part VII lists the legal issues that must be tackled in building a Single Window environment, and the
ways of dealing with them. It contains a description of the features of the Single Window
environment from a legal point of view.
This Part relies on existing knowledge on the subject (e.g. UN/CEFACT Recommendation No. 35
and the analogous aspects of a virtual enterprise), while trying to distil findings from implementation
of the Single Window around the world. Furthermore, it points out the most problematic legal
questions, clarifying and illustrating their significance.
The Section entitled ‘The Single Window: Key Legal Characteristics’ provides a description of
the most important legal aspects of a Single Window, and the respects in which they differ from
those of traditional, stand-alone systems operated by cross-border regulatory agencies (CBRAs).
The next Section provides a ‘life-cycle perspective’ of the Single Window, starting with its
business definition, going through to its establishment as a legal entity, its operations and, finally, its
renewal phase, when there is a fresh look at its raison d’être.
The final Section deals with legal issues that may arise from cross-border regulatory regimes and
business processes in a Single Window environment. Part VII concludes by highlighting the main
lessons for executive management.
2. The Single Window: Key Legal
Characteristics
As governments take steps in establishing a Single Window environment, they will be required to
bring the initiative under a formal and legally sound regime. Cross-border regulatory agencies that
have been running automated systems in their own right are already required to handle the legal
implications for their operation. The theme of this Section is that a Single Window environment
comprising automated systems is also bound by similar requirements, but may have certain
additional characteristics that distinguish it from the traditional CBRA IT systems.
2.1 Defined Legal Authority
Automated information systems and their public manifestation (e.g. web portals, interface
specifications and access channels) must have a legally defined existence. Without that legal
definition, such systems cannot participate in the fulfilment of government’s regulatory obligations.
Such facilities will be operating in a national jurisdiction, and will be governed by national
legislation prescribing all legal requirements and limits for their operation.
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Traditional stand-alone systems are underpinned by the authority in national law that brings the
regulatory services into existence. Customs law and its secondary regulatory structures provide for
the existence of the IT system that operates Customs clearance services. For example, Section 126D
of the Australian Customs Act 1901 mandates the Comptroller-General of Customs to establish and
maintain such information systems as are necessary to enable persons to communicate electronically
with Customs, thereby giving those systems legal authorization.
There is a further expression of this
mandate through statutory provisions which specify the technical interface with these information
systems.
Each organization that participates in international trade has a distinct service to provide. But the
possibility of collaboration with other agencies opens doors for participation in a Single Window
environment – a concept which covers different government agencies joining forces to provide a
sophisticated service. Such operations cannot be handled efficiently if each agency, on its own,
provides the service in a disjointed fashion. Information and communication technology functions
as the engine that moves these connected entities, big or small.
The United Nations Network of Experts for Paperless Trade (UNNExT) has published the document
‘Electronic Single Window Legal Issues: A Capacity-Building Guide’. It covers the wide-ranging
legal issues that are related to the development and operation of a Single Window environment. The
Guide also touches upon the fundamental legal concepts and approaches derived from e-commerce
that apply to the Single Window environment.
The Guide points to the need to systematically
examine the processes that can be employed to identify and assess those potential gaps in domestic
law that might hinder the establishment of a Single Window and its full operation, or hinder the
(cross-border) legal interoperability of the Single Window with other government and nongovernmental entities participating in the Single Window environment.
The basic legal elements necessary to operationalize the Single Window are also examined. The
Guide acts as a checklist and helps experts and policy makers to develop a ‘legal gap analysis’,
which is a major step in developing the appropriate legal framework.
2.2 Legally Enabled Entity
The Single Window concept involves collaboration between information systems running services
which are operated by individual CBRAs or by trade, each with its legal existence. In other words,
it should be fully established in law.
One of the approaches is the creation of an entity that is distinct and set apart from these others.
Governments, however, have a choice as to the type of entity that needs to be established. Some
possible options are:
A government department defined in law or regulations with specified executive and agency
powers and responsibilities.
An autonomous entity authorized by legislation or by executive order.
An entity established by company law, whether private or public.
Any other voluntary association of entities covered by other national legislation.
A joint venture with commercial entities.
Current trends point to the predominance of government departments and government-controlled
organizations as the entities running the Single Window environment.
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The Single Window operator needs to maintain ‘neutrality’ or be at ‘arms-length’ from the
regulatory agencies and their automated systems, each potentially having a distinct legal personality.
If third parties in trade and transport transact with a Single Window as if it were a CBRA, then this
will have to be formalized as a relationship between the Single Window operator and the
participating CBRAs, and that relationship should be based on sound legal principles. By specifying
that the Single Window operator is the sole carrier of data into and out of the CBRA, the government
gives it a unique legal status. Observance of procedures by the regulated entities will depend on the
Single Window operator performing its statutorily assigned functions effectively.
The Single Window may be identified by its visible manifestation, such as its web portal. However,
it is the organization that it represents that matters from a legal standpoint.
The Single Window
operator or orchestrator will not only serve the participating organizations, but also function as their
enabler. The operator assumes liabilities on behalf of the CBRA user. But if the operator is
government-owned, it will enjoy sovereign immunities. The Single Window has to have a legal
personality and a real identity. In the absence of these attributes, it cannot be held liable.
In the ordinary course of events, the Single Window operator needs to be an entity that can conclude
a contract. For instance, the Single Window Operator should, in its own right, through its web
interface, enter into contracts for user registration on behalf of the CBRAs.
Rules of operation of the Single Window may require separate statements of responsibility for each
participating CBRA. Alternatively, all participating CBRAs could be held jointly and severally
liable for Single Window operations.
It is not envisaged that the Single Window operator be responsible for any damages caused to trade.
Healthy cross-border regulation exempts bona fide actions of authorities. The same principle would
apply to the Single Window operator acting in good faith on behalf of the CBRA. However, to place
responsibility on the Single Window operator and hold it to the consequences of its actions or
omissions, there need to be two kinds of agreement, as outlined below.
The first is the ‘master-service agreement’ between the Single Window operator (or orchestrator)
and the CBRA. This includes the performance of obligations, representations and warranties, which
are often supported by service level agreements, interconnection security agreements (ISAs), etc.
The second is the ‘end-user’ or ‘terms of use agreement’ governing the client relationship between
the Single Window operator/orchestrator and the trade user. This may cover IPR and licensing,
service levels, performance guarantees, any user fees, administrative fines, penalties, remissions and
refund policies.
The Figure below helps locate the stage at which the Single Window operator is appointed
