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Electronic Signatures in International Contracts


Carolina Monica Laborde

Electronic signature legislation seeks to facilitate e-commerce by providing an electronic equivalent to handwritten signatures in paper-based contracts. However, electronic signature legislation enacted in the past years in different jurisdictions has followed a dissimilar approach. In light thereof, this book analyzes the legal validity of electronic signatures in international contracts potentially subject to divergent electronic signature regulation. To this end, four major issues are addressed: the technological and legal concept of electronic signatures; the legal regulation of electronic signatures; the determination of the electronic signature legislation that will be applicable to an international contract; and, finally, the implications of applying one electronic signature law or another. The research covers the laws of Argentina, Germany and the United States of America as well as international conventions.


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Part I: Electronic signatures, from technology to law


Chapter 1: Signatures A. The electronic environment In order to understand electronic signatures it is first necessary to understand the medium in which they function. Electronic signatures are used in electronic communications, electronic documents and electronic transactions, which take place in channels that are not always secure, either because they are open networks to which everyone has access, like the Internet, or because, in the case of closed networks, unauthorized persons may gain access to them through attacks.1 Insecurity may arise with regard to three spheres: insecurity as to the identity of persons, insecurity as to the integrity of information and insecurity as to the privacy of information.2 These risks are common to all types of communications but present new angles when in connection with the electronic medium. I. Identity of the person Proper identification of a person is necessary to ensure secure online transactions.3 This is especially true for transactions with legal relevance, such as when purchasing goods or contracting services, where it is important to know with whom a contract is being entered into.4 However, when entering into a contract via electronic means the other party is sometimes unknown and there is no certainty as to his or her identity.5 Even in electronic transactions where contracting parties know and trust each other, there is always the risk that the 1 Ferguson / Schneier, Practical Cryptography, 2003, pp. 21-22. 2 Boyd / Mathuria, Protocols for Authentication and Key Establishment, 2003, pp. 4-12; Bruen / Forcinito, Cryptography, Information Theory, and...

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