Electronic Transactions & Authentication

Introductory Remarks Legal acts from transactions to e-government…. Regulation as facilitation: legal certainty liberalise, preserve, abolition minimum standards international harmonisation Validity, enforceability & admissibility contract formation requirements of form communication procedure Organigrama UNCTAD

Law Reform UNCITRAL Convention (2005) European Union National Model law on electronic commerce (1996) and Model Law on Electronic Signatures (2001) European Union Electronic Signatures Directive (99/93/EC), Electronic Commerce Directive (00/31/EC) National Acts: Cape Verde (2003), Ghana (2008), Zambia (2009), Rwanda (2010) Bills: Nigeria (2011)

Contract Formation

Issues Validity Methods of contract formation Incorporation of terms Content of implied terms

Contract Validity Oral contracts UNCITRAL Convention, Article (8)1 evidence, public policy... UNCITRAL Convention, Article (8)1 “…a contract shall not be denied validity or enforceability on the sole ground that it is in the form of an electronic communication” Exceptions? e.g. real estate, wills and family law

Contract formation Offer Acceptance Declaration of will ‘invitation to treat’ or unilateral offer? Acceptance when and where communicated? instantaneous communications v postal rule Declaration of will ‘electronic agents’ e.g. Java, Active X technology

Defining Events Acknowledgement of receipt Model law 1996, art. 14 “…the data message is treated as though it has never been sent, until the acknowledgement is received.” impact on contract formation? Despatch and receipt of messages dispatch: “when it enters an information system outside the control of the originator” receipt: ‘enters designated information system’; ‘retrieved by addressee’ or ‘addressee information system’

Incorporation of Terms Basic principle terms need to be brought to customer’s attention before the contract is concluded subject to mandatory rules of law e.g. consumer protection rules Model law 1996, art. 5bis (1998) validity: “merely referred to in that data message” Case study: Web site placement of links

Implied Terms Differing national standards Jurisdictional issues quality, fit for purpose, delivery, information obligations, exclusion clauses….. UN Convention on Contracts for the International Sale of Goods (1980) Jurisdictional issues governing law & jurisdiction Hague Conference on Private International Law identity and location export/import restrictions regulated activity, e.g. pharmaceutical products

Requirements of Form

Writing Statutory definitions Judicial interpretation e.g. UK Interpretation Act 1978: “…in visible form..” EU Distance-selling Directive art. 5(1) “...in writing or on another durable medium available and accessible to him...” Judicial interpretation Convention, Art. 9(2) “if the information contained therein is accessible so as to be usable for subsequent reference”

Signatures I Legal requirements & practice Statutory definitions copies & equivalents “‘signature’ includes a facsimile of a signature by whatever process reproduced” Signature functions identity intention to be bound validate integrity of document person to signature, signature to document

Convention, Art. 9(3) Where the law requires that a communication or a contract should be signed by a party, or provides consequences for the absence of a signature, that requirement is met in relation to an electronic communication if: (a) A method is used to identify the party and to indicate that party’s intention in respect of the information contained in the electronic communication; and (b) The method used is either: (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 to have fulfilled the functions described in subparagraph (a) above, by itself or together with further evidence.

Signatures II Minimum standards e.g. EU electronic signatures directive ‘advanced electronic signature’ Digital signature and certification authorities Public/private key encryption techniques certification as third-party verification notorial services

Originals Uniqueness as security Convention Art. 9(4) impact of digital technologies Convention Art. 9(4) (a) there exists a reliable assurance as to the integrity of the information from the time when it was first generated in its final form…..; and (b) where it is required that information be presented, that information is capable of being displayed to the person to whom it is to be made available. integrity: ‘complete and unaltered’, except in the normal course of communication (9(5)

Evidential Issues

Record-keeping I Regulatory Evidential e.g. revenue-related prior approval and audit Evidential statutes of limitation presumptions identity of a party & record of the transaction e.g. copyright ©

Record-keeping II Model law 1996, Article 10 ‘Retention’ (a) the information contained therein is accessible so as to be usable for subsequent reference; and (b) the data message is retained in the format in which it was generated, sent or received, or in a format which can be demonstrated to represent accurately the information generated, sent or received; and (c) such information, if any, is retained as enables the identification of the origin and destination of a data message and the date and time when it was sent or received

Evidential issues Model Law, art. 9 Admissibility: common & civil law systems special conditions for computer-derived evidence? ‘best evidence’ rule “if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.” (9(1)(b)) Evidential weight Reliability, integrity and identification Role of standards?

Concluding Remarks