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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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B. Legal framework of electronic signatures in Germany 78


78 Part II: Electronic signature legislation contracts may still require a handwritten signature. In case an EU member state decides to exclude the applicability of the Electronic Commerce Directive to other contracts, it has to submit a report to the European Commission every five years explaining the reasons for maintaining the exclusion (Article 9.3). B. Legal framework of electronic signatures in Germany The transposition of the Electronic Signatures Directive into national law will be analyzed under German law. Germany also had legislation on the topic before the enactment of the Electronic Signatures Directive. I. German Digital Signature Act The German Parliament enacted the German Digital Signature Act208 on June 13, 1997, which was one of the first statutes addressing the topic of digital signatures. Indeed, this statute dealt only with digital signatures, meaning signatures based on public key cryptography (Section 2.1).209 Nonetheless, the statute recognized the possibility of using other type of digital signatures (the term electronic signature was not used) unless the law required digital signatures in accordance with the German Digital Signature Act (Section 1.2). The German Digital Signature Act established a mandatory licensing scheme for certification authorities (Section 4); therefore, certification authorities needed to obtain a license to issue certificates (Section 4).210 The German Digital Signature Act was effective until the German Electronic Signatures Act came into effect.211 208 Gesetz zur digitalen Signatur, BGBl. I 1997, 1870. The statute was included as Ar- ticle 3 of the Information and Communication Service Act (Informations- und Kommunikationsdienste-Gesetz,...

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