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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 173

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Chapter 8: The international contract in international legal instruments 173 II. International contracts As its name indicates, the UNIDROIT Principles apply to and set forth the rules for international commercial contracts.570 The UNIDROIT Principles do not define international contract and the omission is intentional.571 There are multiple criteria to determine the international character of a contract and the UNIDROIT Principles prefer to remain neutral in this respect so as to avoid restricting the concept of international contract. However, according to the official comment a contract shall be considered international when an international element is present.572 Contrarily, a contract is not deemed international when there are no international elements involved; in other words, “where all the relevant elements of the contract in question are connected with one country only”.573 III. Formal validity The UNIDROIT Principles contain material rules concerning the formal requirements of a contract. A contract governed by the UNIDROIT Principles does not need to comply with any particular form (Article 1.2). Freedom of forms is the rule and the contracting parties are able to choose the form that they consider more appropriate for the transaction. Nevertheless, mandatory requirements as to form established by norms of national, international or supranational origin remain applicable (Article 1.4). For example, if the contract is governed by Argentine law and under Argentine law a contract is to be in writing, this form requirement is still valid. Likewise, forms may be mandatory if so established by the parties (Articles 2.1.13 and 2.1.18). IV. Applicable...

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