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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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IV. Applicable law 171

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Chapter 8: The international contract in international legal instruments 171 III. Formal validity The Inter-American Convention on the Law Applicable to International Contracts distinguishes whether the parties are located in the same country at the time of execution of the contract or not (Article 13). However, unlike the criterion of the Rome Convention that subjects the formal validity of the contract to different laws depending on the location of the parties, the Inter- American Convention subjects the formal validity of the contract to the same laws in both cases. A contract is formally valid if it complies with the requirements of the law governing the contract, the law of the place of execution,565 or the law of the place of performance. IV. Applicable law The Inter-American Convention allows the parties to choose the law applicable to the contract. The choice must result from an express provision in the agreement or it must be evident from the behavior of the parties and the provisions of the contract (Article 7). Therefore, the convention requires a real choice of law by the parties and does not allow courts to infer the intention of the parties in that respect. Therefore, when the choice of law is not express, it has to be evident for the judge which law the parties have chosen. In the same line, a choice of forum provision shall not be construed as an express agreement of the parties to designate the law of the forum as the applicable law...

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