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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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Chapter 4: The European Union and Germany 67


Chapter 4: The European Union and Germany A. Electronic Signatures Directive The Electronic Signatures Directive seeks to prevent the possible or remove the existing legal barriers posed by divergent legislation in the European Union.182 When the Electronic Signatures Directive was adopted, only some of the fifteen member states composing the European Union at that time had electronic signature legislation in place.183 That means that the existence of diverging legislation was only at its inception; the lack of legislation on electronic signatures was the prevailing situation in most jurisdictions. Therefore, the Electronic Signatures Directive served two purposes: to direct member states to adopt legislation governing electronic signatures and to ensure uniform legislation in that field within the European Union. 184 The uniformity sought by the Electronic Signature Directive is limited to the recognition of different types of electronic signatures (Article 1) and the granting the same legal effects as handwritten signatures to one type of electronic signature (Article 5.1). The Electronic Signatures Directive does not seek harmonization of national law relating to form requirements (Article 1 and whereas clause 17). Therefore, which type of signature is required, for example, whether a notarized signature or a simple handwritten signature, or whether a signature is required at all, is decided by national law.185 182 Miedbrodt, Signaturregulierung im Rechtsvergleich, 2000, pp. 84-86; Schlechter, Ein europäischer Rahmen für elektronische Signaturen, in: Geis (Ed.), Rechtsaspekte des elektronischen Geschäftsverkehrs, 1999, pp. 110-112. 183 Nevertheless, most of the member states had either adopted some type...

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