UNCITRAL United Nations Commission on International Trade Law

UNCITRAL United Nations Commission on International Trade Law Raising Confidence in e-Commerce: the United Nations Convention on the Use of Electronic Communications in International Contracts José Angelo Estrella Faria Senior Legal Officer UNCITRAL Secretariat Vienna, Austria

Legal Uncertainty in e-Contracting • Applicable law uncertain • Is there a valid contract? • What are the terms of the contract? • Choice of law clauses and the conflict between country-of-origin and country-of-destination • Conflicts of jurisdiction • Where can/should parties file suit? • Which court can claim jurisdiction? UNCITRAL United Nations Commission on International Trade Law

UNCITRAL Approach to e-Commerce • Establishing functional equivalence • Analyze purposes and functions of paper-based requirements (“writing”, “record”, “signature”, “original”) and offer criteria necessary to replicate those functions and give electronic data the same level of recognition as information on paper • Promoting media and technology neutrality • Equal treatment of paper-based and electronic transactions and of different techniques (EDI, e-mail, Internet, telegram, telex, fax) • Respecting freedom of contract • Commercial parties free to agree on whether and how to use e-commerce techniques and to choose security level appropriate for their transactions UNCITRAL United Nations Commission on International Trade Law

The new UN e-Contracting Convention United Nations Convention on the Use of Electronic Communications in International Contracts • Adopted by the UN General Assembly on 23 November 2005 and opened for signature since 16 January 2006 ates: Signatory s • China, Colombia, Honduras, Iran (Islamic Republic of), Lebanon, Madagascar, Montenegro, Panama, Paraguay, Philippines, Republic of Korea, Russian Federation, Saudi Arabia, Senegal, Sierra Leone, Singapore, Sri Lanka. • Mexico, Spain, United States, (text available at http: //www. uncitral. org/pdf/english/texts/electcom/ch_X_18. pdf) UNCITRAL United Nations Commission on International Trade Law

Core provisions of the e-Contracting Convention Article 1 (Scope of application) Article 2 (Exclusions) Article 6 (Location of the parties) Article 8 (Legal recognition) Article 9 (Form requirements) Article 10 (Time and place of dispatch and receipt) Article 11 (Invitations to make offers) Article 12 (Use of automated message systems) Article 14 (Error in electronic communications) Article 20 (Other international conventions) UNCITRAL United Nations Commission on International Trade Law

Core provisions of the e-Contracting Convention Article 8 (Legal recognition) A contract shall not be denied legal effect, validity or enforceability solely because it is in the form of an electronic communication. Article 9 (Form requirements) Legal requirement of written form is met by an electronic communication if the information contained therein is accessible so as to be usable for subsequent reference. UNCITRAL United Nations Commission on International Trade Law

Core provisions of the e-Contracting Convention Article 9 (Form requirements) An electronic communication meets signature requirements if: (a) A method is used to identify the party and to indicate its intention in respect of the information; and (b) The method is: (i) As reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or (ii) Proven in fact, by itself or together with further evidence, to have identified the party and indicated its intention in respect of the information. UNCITRAL United Nations Commission on International Trade Law

Core provisions of the e-Contracting Convention Article 9 (Form requirements) Where the law requires that a communication or a contract should be made available or retained in its original form that requirement is met in relation to an electronic communication if: (a) There exists a reliable assurance as to the integrity of the information it contains from the time when it was first generated in its final form, as an electronic communication or otherwise; and (b) Where it is required that the information it contains be made available, that information is capable of being displayed to the person to whom it is to be made available. UNCITRAL United Nations Commission on International Trade Law

Core provisions of the e-Contracting Convention Article 9 (Form requirements) – The criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from the addition of any endorsement and any change that arises in the normal course of communication, storage and display. – The standard of reliability required shall be assessed in the light of the purpose for which the information was generated and in the light of all the relevant circumstances. UNCITRAL United Nations Commission on International Trade Law

Core provisions of the e-Contracting Convention Article 10 (Time and place of dispatch and receipt) The time of dispatch of an electronic communication is (a) when it leaves an information system under the control of the originator or of the party who sent it on behalf of the originator or, (b) if the electronic communication has not left an information system under the control of the originator or of the party who sent it on behalf of the originator, the time when the electronic communication is received. UNCITRAL United Nations Commission on International Trade Law

Core provisions of the e-Contracting Convention Article 10 (Time and place of dispatch and receipt) • The time of receipt of an electronic communication is the time when it becomes capable of being retrieved by the addressee at an electronic address designated by the addressee. • The time of receipt of an electronic communication at another electronic address of the addressee is the time when it becomes capable of being retrieved by the addressee at that address and the addressee becomes aware that the electronic communication has been sent to that address. • An electronic communication is presumed to be capable of being retrieved by the addressee when it reaches the addressee’s electronic address. UNCITRAL United Nations Commission on International Trade Law

Core provisions of the e-Contracting Convention Article 10 (Time and place of dispatch and receipt) An electronic communication is deemed to be dispatched at the place where the originator has its place of business and is deemed to be received at the place where the addressee has its place of business. The receipt rules apply notwithstanding that the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is deemed to be received under the Convention. UNCITRAL United Nations Commission on International Trade Law

Core provisions of the e-Contracting Convention Article 20 (Other international conventions) International conventions expressly covered: • Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958); Convention on the Limitation Period in the International Sale of Goods (New York, 14 June 1974) and Protocol thereto (Vienna, 11 April 1980); • United Nations Convention on Contracts for the International Sale of Goods (Vienna, 11 April 1980); • United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (Vienna, 19 April 1991); • United Nations Convention on Independent Guarantees and Stand-by Letters of Credit (New York, 11 December 1995); • United Nations Convention on the Assignment of Receivables in International Trade (New York, 12 December 2001). UNCITRAL United Nations Commission on International Trade Law

Electronic Communications and Choice of Court Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters Article 23 […] an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; or (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned. 2. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to "writing". UNCITRAL United Nations Commission on International Trade Law

Electronic Communications and Arbitration Recommendation regarding the interpretation of article II, paragraph 2, and article VII, paragraph 1, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958), adopted by UNCITRAL on 7 July 2006, at its 39 th session. […] Recommends that article II, paragraph 2, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958, be applied recognizing that the circumstances described therein are not exhaustive; UNCITRAL United Nations Commission on International Trade Law

For more information on the work of UNCITRAL in the area of electronic commerce, or on other topics, please visit our web site http: //www. uncitral. org/ Thank you for your attention! UNCITRAL United Nations Commission on International Trade Law