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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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F. UNIDROIT Principles of International Commercial Contracts 172


172 Part III: Electronic signatures and international contracts In the case there is no choice of law, the contract is governed by the law of the country with the closest ties to the contract (Article 9). The judge shall make that determination taking into account all objective and subjective elements of the contract. There is one exception to the rule of the closest ties and it is for determining whether a party has duly consented to the contract or not. In that case, the law of the habitual residence or principal place of business is to govern that particular matter (Article 12 second paragraph). Exceptionally, a part of the contract may be subject to a law to which it has closer connections (Article 9). However, that part must be separable from the rest and have a closer connection to another state (Article 9). The law chosen by the parties or the one designated by the judge shall yield to the mandatory rules of the forum. Also, the mandatory rules of a law closely connected to the contract may result applicable (Article 11). F. UNIDROIT Principles of International Commercial Contracts I. Background The International Institute for the Unification of Private Law (UNIDROIT) is an international body whose main function is to work towards the harmonization and coordination of private law between states (UNIDROIT Statute, Articles 1 and 2.1). UNIDROIT dates from 1926 and used to be a body of the League of Nations.566 It later became an independent organization through the...

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