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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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B. German law governing the form 215


Chapter 10: The interaction of electronic signature legislation 215 Nevertheless, in case signatures based on public key cryptography are not recognized because of the lack of a certificate issued by a licensed certifier it shall not be forgotten that the contract bears nonetheless an electronic signature. Therefore, the signatory may voluntarily recognize the electronic signature (Sections 1012 and 1014 Argentine Civil Code). Moreover, the existence of a writing allows the introduction of all means of evidence to prove the contract (Sections 1191 and 1192 Argentine Civil Code). 3. Electronic signature A contract may bear an electronic signature. In this case we consider only electronic signatures not based on public-key cryptography, that is, excluding invalid digital signatures. The use of electronic signatures may be feasible in contracts where there is no form mandated by law if Section 3 of the Argentine Digital Signature Act is construed restrictively. But even if this restrictive interpretation of Section 3 is not accepted, Sections 1012 and 1014 of the Argentine Civil Code concerning the voluntary recognition of signatures apply and according to Sections 1191 and 1192 Argentine Civil Code the existence of a writing allows the introduction of all means of evidence to prove the contract. B. German law governing the form I. Form requirements under German law The Electronic Signatures Directive establishes the legal framework for electronic signatures in Europe. However, in principle, directives are not directly applicable and have to be transposed by each national legislative body. The implementation of the Electronic Signatures...

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