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Electronic Signatures in International Contracts

Series:

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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IV. Applicable law 153

Extract

Chapter 8: The international contract in international legal instruments 153 However, contracting states whose legislation require a writing can opt out of this provision by declaring that written form requirements imposed by national law cannot be fulfilled by using another type of form (Article 96). According to Article 12 the freedom of forms principle does not apply when a contracting state has made a declaration under Article 96.481 In these cases, the form of the contract is not covered by CISG; thus, the law that will govern the form has to be determined. However, CISG does not address how the determination of the applicable law is made. On the one hand, it is sustained that the law governing the form is the law of the state that made the reservation.482 On the other hand, it is considered that the rules of private international law of the forum judge shall determine the law governing the form.483 If the law of the contracting state making an Article 96 reservation is determined as the one governing the form – either based on the first position or on the forum judge´s private international law – the law of that country governs the formal requirements of the contract. Nevertheless, it does not mean that the contract necessarily has to comply with a form requirement. Several legal systems follow the rules of the principle of freedom of forms and it may be that under the national law governing the form, the sale contract at stake does not...

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