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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 224

Extract

224 Part III: Electronic signatures and international contracts requirement of a signature. The electronic signature statutes in the United States of America recognize one type of signature and this may be used whenever the law requires a signature as well as when it does not. The principle of technology neutrality and the minimalist approach adopted by US legislation result in an ample freedom for the parties when it comes to decide which method to use to sign electronically.745 An electronic signature, whatever its type, satisfies the legal requirement of a signature if it is affixed with the intent to sign and authenticate the contract. Therefore, a digital signature and an electronic signature issued in accordance with the Argentine Digital Signature comply with the requirements of an electronic signature under US law if those requirements are met. The type of signing method used is not relevant as long as the functions are performed. D. Conclusions Whether one legal system or another is designated as governing the formal validity of a contract impacts on its formal requirements. The first consequence is whether the legal system imposes a special formal requirement at all. The predominant principle in today´s legal systems is the freedom of forms and, therefore, the requirement of a certain form is the exception. The second consequence is whether a signature is required. A foreign electronic signature has to be recognized under the terms of the law governing the form. That means that the form requirements are assessed under the...

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