Internacional: Legislative requirements for electronic transactions.
| Autor | Maria Gabriela Sarmiento |
| Cargo | Abogado. Administrador de Proyectos, Unidad e-Strategy, Comercio-e para países en desarrollo y e-services, Unión Internacional de Telecomunicaciones. |
Electronic commerce raises issues at the hart of traditional regulations, practices and procedures resulting from legal requirements applicable to the form and evidence of legal acts in the context of domestic and international commercial transactions.
Developing countries’ legal framework on electronic commerce lacks of internationally acceptable rules and guidelines for the recognition of online contracts and digital signatures, of technical assistance to adapt national laws to the new trade avenue, and causes problems when applying traditional principles on jurisdiction and conflict of law rules in an electronic environment.(1)
Due to this phenomenon and its impact on commercial transactions, new laws will have to be added, and old laws will have to evolve to conform with the specific demands of the new media. The legal framework shall address the different factors associated with using Information and Communication Technology platform for a transaction to be legally valid. Areas that involve legal issues relevant to electronic commerce include: Copyright, Privacy and Consumers Protection, liability of intermediaries, Applicable Law, Jurisdiction, Dispute Resolution, etc. These are some of the topics to be developed during this presentation.
ELECTRONIC CONTRACTS. On-line transactions are a source of revenues but the following obstacles are restricting the possibility of concluding online contracts across frontiers: first, the formal requirements to conclude any type of transactions and second, the legal uncertainty as to the lawfulness or validity of electronic contracts.(2)
These transactions need rules to govern the relationship between the parties. The primary vessel for these rules is the agreement itself, the contract. For example, it is difficult to determine the time and place of conclusion of an electronic contract. In fact, the time when the contract is formed is important in determining the passing of property and transfer of loss or damage in cases of sale of goods. The place where the contract is concluded may determine the applicable law to govern the contract and jurisdiction in case of dispute between the parties to the contract. The contract should be viewed as the most important self-regulatory measure available to parties engaging in electronic commerce. It is recommended to include specific provisions on the terms and conditions applicable to electronic transactions. Provisions shall include the terms of delivery of goods, payment mode and terms, title and ownership, passing of risks, rights, etc according to the type of electronic transaction to be undertaken.(3)
Contracts are voluntary exchanges. Maximum use should be given to freedom of contracts and party autonomy. To conclude a contract, even electronically, an offer and an acceptance must be passed. Parties drafting contracts and those parties who would accept them, must be thoughtful about certain terms, such as disclaimers, choice of law and jurisdictional forum, consumer protection, limitation of liability and questions of mandatory local law. An offer and an acceptance forms a contract, but an offer and an acceptance concluded electronically can be considered as partial evidence of the conclusion of a contract.(4)
With respect to contractual and evidentiary formalities, there is increasing consensus that, in case an electronic communication has a sufficient measure of reliability, durability, and integrity as to its content, no particular form or formal procedure is required to ensure its effectiveness for the purpose for which it is created.(5) The exchange of consents will give legal effects to the contract, without having to respect requirements of form, except in such situations where the law requires a written or stamped document.
There is a need to establish a legislative framework for electronic commerce to increase confidence by stating provisions related to legal protection of online transactions. Major national and international texts state provisions requiring most of documents to be presented in original. It is not easy to determine if an electronic document shall be considered as an original. Mayor problems arise when laws require the storage of information in a paper form. In such cases it will not be valid to storage an electronic document.
The United Nations Commission for International Trade Law (UNCITRAL) Model Law on e-commerce serves as a model for national legislation and assists contracting parties in formulating their contracts and provides some guidance for removing barriers to electronic commerce.(7) It establishes rules and norms to validate and recognize electronic contracts, sets default rules for contract formation and governance of electronic contract performance, defines the characteristics of valid electronic writings and original documents, provides for the acceptability of electronic signatures for legal and commercial purposes, and includes rules governing the admissibility of data messages as evidence in legal proceedings and evidential value. This Model includes provisions on storage of data messages, acknowledgement of receipt, time and place of dispatch and receipt of data messages, as well as specific provisions pertaining to carriage of goods. The Model Law stipulates that the rules of evidence shall not be applied so as to deny the admissibility of a data message in evidence on the sole ground that it is a data message or is not an original document.
The United Nation Convention on International Sale of Goods (CISG) is an acceptable framework for online contracts dealing with the sale of goods. The CISG is applicable only to contracts that are concluded between parties having their place of business in different countries. According to important writers, the sale of software can be included under the scope of the convention, even though software is not a tangible good. This will not apply if the software is sent electronically and if the international sale objective covers a custom made software because the convention does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services. The convention does not apply either to sales of goods...
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