اینکاها : یک سیستم کارشناسی قانونی برای شرایط قرارداد در تجارت الکترونیک

Electronic commerce is doing business via electronic networks. Paper-based trade documents such as, for example, request for quotation, purchase order or invoice are replaced by electronic messages, in particular Electronic Data Interchange (EDI) messages. These electronic messages are not only transmitted much faster than paper-based documents, but they can also be processed automatically by computers. An example of this automated processing of electronic messages is electronic contracting and negotiation where the actual trade contract is on-line negotiated and concluded via an electronic network. We present the legal expert system INCAS that can provide on-line explanations about the use of Incoterms in trade contracts. Incoterms stipulate which party (buyer or seller) is responsible for arranging and paying transport of the goods, and arranging the documents necessary for this transport (e.g. export and import clearance documents, certification of origin, quality certificates etc.). INCAS is implemented in the programming language Prolog. We also explain how the defeasible reasoning capability of Prolog is essential for modelling the reasoning about the Incoterms.

Electronic commerce is doing business via electronic networks. Paper-based trade documents such as, for example, request for quotation, purchase order or invoice are replaced by electronic messages, in particular Electronic Data Interchange (EDI) messages. These electronic messages are not only transmitted much faster than paper-based documents, but they can also be processed automatically by computers. For the efficiency gain of electronic versus paper-based messages this automated processing is perhaps more important than the electronic transmission of the message (see Ref. [13]). Currently, the automated processing of electronic messages is restricted to automated entering of data in the company's database and simple processing such as, for example, automatic invoicing or calculation and payment of VAT. But one can imagine more advanced types of processing. For example, basic legal inferences could be made from an electronic message. For example, if one becomes the new owner of a good by receiving an ownership document for this good, it might be convenient that the processing system automatically makes the inference that as new owner you are liable in case of damage incurred by the goods, and that from this observation it subsequently infers automatically that insurance has to be arranged for these goods. A more sophisticated type of automated processing of electronic messages is electronic contracting and negotiation where the actual trade contract is on-line negotiated and concluded via an electronic network. In principle this negotiation process could be done by autonomous software agents that are instructed by a human user how to negotiate for him. However, in most cases the electronic negotiation process will probably be semi-automated where the human user is also involved and takes the final decision. Also, here automated processing can be very helpful, for example where the computer analyses the content of the contract and provides what-if analyses to explain to the user what his liabilities and risks are if he agrees to a proposed contract. For example, in most cases trade contracts contain terms for the type of delivery of the traded goods. These terms, the so-called Incoterms, stipulate which party (buyer or seller) is responsible for arranging and paying transport of the goods and arranging the documents necessary for this transport (e.g. export and import clearance documents, certification of origin, quality certificates, etc.). There are 13 different terms. Usually, these terms are included in the contract only by reference to an abbreviated code without any further explanation. For example, the term EXW (“Ex Works”) says that the seller has the obligation to make the goods available at his premises to the buyer. The buyer is obliged to arrange and pay transport of the goods from the seller's premises to his own premises. Furthermore, under EXW the buyer bears all the risks of damage of the goods during transport. A very popular term is FOB (“Free On Board”), which says that the seller is responsible for transport of the goods until they have passed ship's rail at the named port of shipment. The seller is also responsible for clearing the goods for export, and bears all the risks of damage of the goods during transport until the goods have passed the ship's rail. After the ship's rail all obligations for transport of the goods and arranging the necessary documents are for the buyer. Differences between Incoterms can be very subtle. For example, the only difference between FOB and FAS (“Free Alongside Ship”) is that under FOB the seller is responsible for everything until the goods have passed the ship's rail, whereas under FAS he is responsible for everything until just before the ship's rail. Hence, under FOB the seller has to arrange export clearance of the goods, but not under FAS. For further details on the Incoterms the reader is referred to Appendix A. When negotiating the delivery terms of a contract on-line it would be very helpful when the negotiator could consult an on-line automated expert system that gives some explanation about the meaning of the specific delivery term proposed in the contract. In this article we present the system INCAS that provides this service. Incoterms were developed by the International Chamber of Commerce (ICC). In 1936, when Incoterms were first published, the initial objective of the ICC was to make available to traders a means to avoid the worst causes of friction resulting from the diversity of interpretation of legal terms in international commerce. The ICC is not the only organisation to offer standard legal terms for international commerce. National rules like those included in the US Uniform Commercial Code are also used in international commerce. Some forms of electronic commerce, e.g. open EDI, support the use of standard business procedures. Open EDI enables short term or ad hoc commercial transactions between organisations. A business procedure is the set of mutually agreed upon rules that governs the activities of all parties involved in a set of related business transactions. Business procedures in electronic commerce are envisaged to be publicly available, remotely accessible and directly executable [2, pp. 84–87][19, pp. 27–30]. When designing trade procedures it is essential to take into account certain legal considerations that interrelate with the type of the transactions in question. Since Incoterms have been so widely accepted and in some cases constitute part of commercial practice, they should be taken into consideration when designing these procedures [14]. The emergence of electronic commerce applications has sparked yet more ICC initiatives [10] and [12][18, pp. 249–259][19, pp. 249–264][24]. ETERMS, an initiative of the ICC, aims at putting legal problems of electronic commerce into a broader perspective and addressing the legal questions of electronic commerce transactions. The ETERMS project aims at making available a Repository of commercial terms for electronic commerce, like terms and agreements contributed by users of electronic commerce. ETERMS can be used to communicate generally accepted terms and agreements, such as Incoterms, specialised terms and agreements that do not necessarily reflect current trade use, electronic commerce conventions, guidelines and rules as well as international conventions on electronic commerce. A second kind of ETERMS is Recognised Practice Terms for electronic commerce, as they will be contributed by an appointed group of legal experts. Lessons learned and techniques applied in INCAS can be re-used for the further development of the ETERMS Repository. INCAS (INCoterms Advise system) is a Prolog-based expert system that gives advice to users about the use of Incoterms delivery terms in trade contracts. This expert system has been developed at EURIDIS under the supervision of Yao-Hua Tan. INCAS provides users with several types of information about Incoterms. Firstly, INCAS can explain Incoterms to the user. Secondly, it can reason with the Incoterms knowledge about specific situations and give customised advice in specific problem situations. For example, if a seller is trading goods X under a specific Incoterm Y, and the goods are damaged in port Z, then the system can inform the seller whether he is liable for this damage or not. Thirdly, INCAS can also support the negotiation of delivery terms in a sales contract between buyer and seller. If the buyer and seller tell the system what responsibilities each of the parties is prepared to take in the trade transaction, then the system can propose the optimal Incoterm that is best for both buyer and seller. This negotiation process is considered to be a barrier in international trade, because it requires an expert knowledge about Incoterms that most small- and medium-size companies cannot afford. INCAS is a system that aims at adapting Incoterms to the requirements of electronic commerce. Having tools that explain Incoterms to newcomers in electronic commerce can substantially improve the opportunities of these users to participate in electronic commerce. The ICC published the Guide to Incoterms 1990, which is an explanation of the Incoterms for users without legal expertise. This publication turned out to be highly successful and very helpful, in particular for small- and medium-size companies. However, it still requires a considerable effort to familiarise oneself with the content of this book. INCAS is essentially an electronic version of the Guide to Incoterms that can be available via the Internet. Although, the system has been developed as a stand-alone application, it could also be developed into an automatic expert system that can be accessed via a World Wide Web browser that is connected to an electronic network like the Internet. We see a potential for INCAS as an on-line help service that facilitates electronic commerce. The implementation of INCAS is based on a formal specification of the Incoterms in the logic-based programming language Prolog. A special feature of logic-based programming languages is that the execution of a program is similar to human reasoning. This makes these languages very suitable for implementing advice tasks, which are often based on reasoning tasks. The use of Prolog to build legal expert systems is not new. For example, an expert system based on a Prolog implementation of the British Nationality Act was already given in Ref. [15] and in Ref. [27] the Prolog-based deontic expert system shell DX was introduced. It has been hotly debated whether Prolog is adequate for implementing legal domains. We analyse to what extent the criticism applies to the Prolog formalisation of Incoterms in INCAS. The Incoterms domain has a large number of interesting and complicated examples of defeasible reasoning. By defeasibility we mean that a rule is overruled by another rule or fact. For example, in Incoterms there is a rule that says that under certain terms the buyer is liable for damage to the traded goods when the goods have left the port of origin. But this rule can be overruled if the seller did not package the goods adequately. In that case the liability is transferred from the buyer to the seller. It has been a controversial issue to what extent defeasibility really occurs in legal domains. Some researchers claim that there is no defeasibility in legal domains, and that apparent cases of defeasibility are actually cases of complementary rules. In other words, it is not the case that there is a rule that is overruled by another rule, but there are simply two rules with different application domains; one rule that applies to the adequate packaging situation, and then the buyer is liable, and the other rule that applies to the inadequate packaging situation, and then the seller is liable. A closer look at Incoterms shows that there is real defeasibility in this domain. We also discuss in detail how this defeasibility is implemented in INCAS. This article is organised as follows. In Section 2 the basic notions of the Incoterms are addressed. In Section 3 the functionality of INCAS is described. In Section 4 the technical details of the implementation of INCAS are discussed. In Section 5 the defeasible reasoning aspects of INCAS are discussed. In Section 6 the analysis of the logical aspects of INCAS is given. In Section 7 an example of the user's interaction with INCAS is given. Finally, Section 8 contains the conclusions.

An expert system like INCAS can be used as an assistant to those electronic commerce users that are little or not at all acquainted with current business practice. Incoterms have been highlighted as being appropriately ready to use in forms of electronic commerce, like EDI [25]. The widespread ability to conduct electronic commerce should be matched with spreading tools that make it safe and secure to users to transact so. An on-line trader can combine his automated ordering system with information that INCAS provides to select the most appropriate Incoterm for the case and conclude the transaction. In electronic commerce, Incoterms prevail as global terms that can be used for international transactions and that are readily available to the users. INCAS diminishes the gap between comprehending and using the most appropriate Incoterm. In open electronic commerce spreading information can assist more potential users to transact in an open global market. A specialised system like INCAS can become more effective if integrated in an automated information retrieval and legal expert system that supports electronic commerce transactions. In the context of electronic commerce, INCAS is also significant as a working prototype to formalise the recognised practice terms when the ETERMS Repository becomes available. From the ETERMS perspective the experience of analysing and reasoning about Incoterms is valuable. It would be interesting to link together the recognised practice terms and Incoterms to provide integrated information to individual users of electronic commerce. INCAS can be seen as a template for structuring and representing similar legal domains. We also analysed which role defeasible reasoning plays in the representation of Incoterms. We showed that there are many interesting examples of defeasibility in Incoterms. There were even examples of defeasibility with exceptions to exceptions. The general rule, under the FOB term, that the buyer is liable for damage on the open sea, can be overruled by the exception that the seller did not package the goods properly. But this exception can be overruled by another exception that the seller did not package properly, because he was not informed adequately by the buyer about extreme transport conditions of the goods. In the Prolog implementation of INCAS it was shown in detail how the negation-by-failure of Prolog was essential to model these different types of defeasibility in Incoterms.