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Electronic Signatures in International Contracts

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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. Conclusions 82

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82 Part II: Electronic signature legislation A treaty recognizes the foreign certificate or the foreign certification-service- provider (Article 23(1)3). 4. Licensing of certification authorities An important change introduced by the German Electronic Signatures Act is the abandonment of the licensing requirement for certification-service-providers. The German Digital Signature Act required certification-service-providers to obtain a license (Article 4).221 Under the German Electronic Signatures Act and in accordance with the Electronic Signatures Directive no license is required for a certification-service-provider to operate. Only voluntary accreditation schemes based on objective, transparent, proportionate and non-discriminatory conditions can be implemented (Article 3.2 Electronic Signatures Directive). C. Conclusions The Electronic Signatures Directive distinguishes three types of electronic signatures with different standards of security. Only one type of electronic signature, the qualified electronic signature, which arguably requires to be based on public key cryptography, shall be granted the same value as handwriting signatures. Within the European Union, the use of the simple type of electronic signatures is widespread while advanced and qualified electronic signatures are uncommon. In Germany, the implementation of the Electronic Signatures Directive by means of the Electronic Signatures Act 2001 meant the repeal of the German Digital Signature Act and the abandonment of a digital signature approach with a mandatory accreditation scheme. 221 Geis, Die elektronische Signatur: Eine internationale Architektur der Identifizierung im E-Commerce, MMR 2000, 667, 668; Miedbrodt, Signaturregulierung im Rechtsvergleich, 2000, p. 63.

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