Notes on the United Nations Convention on the use of Electronic Communications in International Contracts and its effects on the United Nations Convention on Contracts for the International Sale of Goods.

(i) As reliable as appropriate for the purposes 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. (110)

Therefore, if under domestic law a signature is required, the signature requirement can be met by a proper indication of intent and use of a reliable and appropriate method. The reliability of the method may be proved in any manner (to the extent it is admissible under the applicable domestic law). (111) The "reliability test" however should not be used to challenge a party's own signature on the ground that the signature was not reliable where the identity is not disputed and the party's intention can be proved. (112) The ECC provides criteria for the legal recognition of electronic signatures irrespective of the technology used and does not identify specific equivalents to particular functions of handwritten signatures. (113)

Finally, the Convention deals with those instances whereby domestic law requires an original paper document. (114) When such a requirement has been put in place, an electronic communication will be adequate 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. (115)

As for "writings" and "signatures," then, the Electronic Communications Convention sets up minimum requirements to be met for an electronic communication to be deemed to be as a functional equivalent of an original. These requirements, however, cannot be made stricter by a Contracting State because it would compromise the purposes of the Convention. (116)

In conclusion, while electronic communications may pose specific concerns with integrity, authenticity, and reliability issues, there are, nonetheless, perfectly capable means of achieving the same effects and consequences of other communication methods. Some prophylactic measures must be taken when dealing with these issues, but these measures should not be used to alter the substance of the driving principles of technical neutrality and functional equivalence that underlie the Convention.

(6) Time and place of dispatch and receipt of electronic communications. (117) CISG article 15 ECC article 10 a. An offer becomes effective (2) The time of receipt of an when it reaches the offeree. electronic communication is

the time when it becomes b. An offer, even if it is capable of being retrieved by irrevocable, may be withdrawn the addressee at an electronic if the withdrawal reaches the address designated by the offeree before or at the same addressee. The time of receipt time as the offer. (118) of an electronic communication

at another electronic address CISG article 18(2) of the addressee is the time

when it becomes capable of An acceptance of an offer being retrieved by the becomes effective at the addressee at that address moment the indication of and the addressee becomes assent reaches the offeror. aware that the electronic An acceptance is not effective communication has been sent if the indication of assent to that address. An electronic does not reach the offeror communication is presumed to within the time he has fixed be capable of being retrieved or, if no time is fixed, by the addressee when it within a reasonable time, due reaches the addressee's account being taken of the electronic address. circumstances of the transaction, including the (3) An electronic rapidity of the means of communication is deemed to be communication employed by the dispatched at the place where offeror. An oral offer must be the originator has its place of accepted immediately unless the business and is deemed to be circumstances indicate received at the place where otherwise. (119) the addressee has its place

of business, determined in CISG article 24 accordance with article 6. For purposes of the Part of (4) Paragraph 2 of this the Convention [Formation of article applies the Contract], an offer, notwithstanding that the place declaration of acceptance or where the information system any other indication of supporting an electronic intention "reaches" the address is located may be addressee when it is made different from the place where orally to him or delivered by the electronic communication any other means to him is deemed to be received under personally, to his place of paragraph 3 of this business or mailing address article. (121) or, if he does not have of business or mailing address, to his habitual residence. (120)

Effectiveness of Electronic Communications

For purposes of the CISG, even if a proposal for a contract meets all of the requirements under article 14, it becomes effective as an offer only when it reaches the offeree. (122) An oral offer is an instantaneous communication and it reaches the offeree (and therefore becomes effective) when it is made. (123) A written offer reaches the offeree (and therefore becomes effective) when it is delivered to the offeree personally or to "his place of business or mailing address or, if he does not have place of business or mailing address, to his habitual residence." (124) An acceptance becomes effective when the "assent reaches the offeror," assuming that the acceptance reaches the offeror on time. (125)

While the CISG provides that the sender bears the risk of communications occurring before the conclusion of the contract, (126) with regard to communications occurring after the formation of the contract the CISG seems to embrace a different assumption. CISG article 27 states

[u]nless otherwise expressly provided in this Part [Part III

Sale of Goods] of the Convention, if any notice, request or other

communication is given or made by a party in accordance with

this Part and by means appropriate in the circumstances, a delay

or error in the transmission of the communication or its failure

to arrive does not deprive that party of the right to rely on the

communication. (127)

With certain exceptions, the risk of delay or errors in notices, requests or other communications given or made by a party in accordance with Part III of the CISG falls on the addressee rather than the sender. (128) Examples of notices falling within the province of article 27 are: notice of consignment, (129) non-conformity, (130) third-party claims, (131) request for specific performance, (132) price reduction, (133) damages, (134) fixing additional period for performance, (135) avoidance, (136) risk of loss, (137) and preservation of goods. (138) It must be noted, however, that (i) article 27 applies to any other communication the parties must give pursuant to their contract, unless the parties have agreed otherwise; (ii) some provisions of Part III of the CISG provide that the communication becomes effective when it reaches the addressee; (139) and (iii) the sender must use an appropriate mode of transmission or else the communication is ineffective. (140)

The CISG distinguishes between communications that are instantaneous, such as an oral communication by phone, and noninstantaneous forms of communication, such as telegram and writings. (141) There are instances in the CISG in which different rules apply depending on the category in which the communication falls. (142)

The ECC does not create an additional set of substantive rules concerning contract formation and electronic communications, (143) but rather provides specific rules intended to supplement domestic rules on dispatch and receipt of electronic communications. (144) The challenge is finding out how and to what extent the ECC rules provide clarifications.

The way the Convention deals with electronic communications is very similar to the way the CISG deals with traditional means of communication. Under both the CISG and the ECC we find familiar concepts, such as, "dispatch," "receipt," and "reach." For purposes of the ECC, a communication is dispatched when it leaves the information system of the originator and reaches the addressee when it becomes capable of being retrieved by the addressee at an electronic address designated by the addressee. (145) Once the electronic communication is capable of being retrieved at the addressee's e-mail address, ECC article 10 creates a rebuttable presumption that the electronic communication has been received by the addressee. (146) Whether the communication is capable of being retrieved or not is a factual question outside the scope of the Convention. (147) Finally, as to the "receipt" of an electronic communication, the test is an objective one as it is based on the time of entry into the information system. (148)