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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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D. Conclusions 202

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202 Part III: Electronic signatures and international contracts D. Conclusions The formal validity of a contract is fundamental for the contracting parties because a contract which does not comply with the formal requirements may be void or unenforceable. In an international contract multiple possible laws may determine the question of the formal validity. Each legal system follows its own rules; however, all three jurisdictions analyzed recognize the formal validity of a contract that complies with the formal requirements of the law of the place of execution or of the law governing the substance of the contract. For contracts where the parties are in several places even a more flexible approach is adopted. German law assesses the formal validity of the contract under any of the laws where any of the parties is located when issuing the relevant declaration. Argentine law applies the law most favorable to the formal validity of the contract. Concerning the lex causae, party autonomy is recognized in all three jurisdictions; consequently, contracting parties may not only choose the law that will govern the substance of the contract but may also apply that law to the formal validity of the contract. Party autonomy is normally dependent on the existence of an international contract. Domestic law adopts a flexible approach towards the characterization of a contract as international. However, party autonomy has also been recognized in domestic contracts but the law chosen is subject to important limitations. In conclusion, in the national laws examined, when the parties follow...

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