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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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C. Technology neutrality in electronic signature statutes 53


Chapter 2: The legal approach to electronic signatures 53 the one hand, it could be argued that it follows the two-tier approach admitting in the prescriptive prong only digital signatures as equivalents to handwritten signatures. On the other hand, it could also be argued that the Argentine Digital Signature Act falls within the prescriptive approach because it focuses almost entirely on digital signatures and PKI.130 Some Argentine scholarly studies consider that the Argentine Digital Signature Act is a technologically neutral statute because no specific technique is required.131 However, the Argentine Digital Signature Act does not fall within the concept of technology neutral statutes because it favors digital signatures over other types of electronic signatures. The regulation on digital certificates and the structuring of a public key infrastructure attest to it. Also the government website relating to this topic goes with the name PKI, . Although it has been argued that other types of technologies may meet the requirements to be considered a digital signature, at this point in time only public key cryptography can achieve this.132 C. Technology neutrality in electronic signature statutes Legislation can certainly promote the use of electronic signatures by providing an appropriate legal framework. In this regard clear-cut legislation providing answers to the validity of electronic signatures and electronic documents is desirable.133 Yet, legislation can have the opposite effect and undermine an institution by means of excessive or defective regulation. This is true in every field but in statutes relating to electronic commerce it is easily verifiable.134...

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