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.

In conclusion, with the exception of input errors, the Convention does not deal with validity issues in the context of errors. (235) However, the Convention expressly limits the ability to question the validity or enforceability of e-contracts on the sole ground that it occurred in the form of an electronic communication or solely through the interaction of automated systems. (236)

(10) Reservations and declarations

This topic has little to do with the Convention and its interaction with the CISG. It is included here as a side note concerning the use of the terms of "reservation" and declarations under the Convention.

The term "reservation," as used in ECC article 22, (237) squarely falls within the meaning of reservation as understood under the Vienna Convention of the Law of Treaties of 1969, (238) but one can also argue that the "declarations" mentioned throughout the ECC are also "reservations." (239) According to article 2(d) of the Vienna Convention of the Law of Treaties, "'reservation' means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State." (240) In this context, it becomes clear that what the ECC text refers to as a declaration is actually a reservation. (241) Technically,

[t]he term "declaration" is used for various international

instruments. However, declarations are not always legally

binding. The term is often deliberately chosen to indicate that

the parties do not intend to create binding obligations but

merely want to declare certain aspirations.... Declarations can

however also be treaties in the generic sense intended to be

binding at international law. It is therefore necessary to

establish in each individual case whether the parties intended to

create binding obligations. Ascertaining the intention of the

parties can often be a difficult task. Some instruments entitled

"declarations" were not originally intended to have binding

force, but their provisions may have reflected customary

international law or may have gained binding character as

customary law at a later stage. (242)

With this note in mind, consider, for example, ECC article 19, which provides as follows:

1. Any Contracting State may declare, in accordance with article 21, that it will apply this Convention only:

(a) When the States referred to in article 1, paragraph 1, are Contracting States to this Convention; or

(b) When the parties have agreed that it applies.

2. Any Contracting State may exclude from the scope of application of this Convention the matters it specifies in a declaration made in accordance with article 21. (243)

The declarations referred to in article 19 clearly are not merely an expression of aspiration to do or not do something, but rather represent a statement intended to limit the scope of the application of the Convention. (244) Thus, even though there are instances where declarations under the ECC might be easily understood to be reservations, international trade law agreements, including UNCITRAL texts, prefer using the term "declaration" to avoid certain technicalities connected with the use of "reservations" under treaty law. (245)

Declarations under articles 17(4), 19(1) to (2), 20(2) to (4) may be made at any time. (246) Declarations under articles 17(2) and 18(1) must be made at the time of signature, ratification, acceptance, or approval. (247) To be effective, "declarations made at the time of signature are subject to confirmation at the time of ratification, acceptance, or approval." (248) This approach is different from that of the CISG, whereby a CISG Contracting State, generally, may make a declaration "at the time of signature, ratification, acceptance, approval or accession." (249) The difference was due to the fact "in an area as rapidly evolving as the area of electronic commerce, in which technological developments rapidly changed existing patterns of business and trade practices, it was essential to afford States the flexibility required for the application of the draft convention." (250) Moreover, it was noted that "[a] rigid system of declarations ... might either deter States from joining the Convention, or might prompt them to act in an overly cautious manner, thereby leading States to exclude automatically the application of the draft convention in various areas." (251) Finally, for purposes of determining when declarations take effect, article 21 (3) provides two rules, depending on whether the declaration has been made prior or after the entry into force of the Convention. (252)

4. CONCLUSION

The Convention is a useful tool for purposes of solving issues involving the use of electronic communications in international transactions. When the CISG and ECC can be applied to the same dispute the ultimate effect would be exactly what the ECC drafters had in mind: set forth basic, uniform rules that would ultimately provide some degree of guidance when electronic communications are involved.

(1.) G.A. Res. 60/21, U.N. Doc. A/Res/60/21, U.N. Sales No E.07.V.2 (Dec. 9, 2005), available at http://www.uncitral.org/pdf/english/texts/electcom/0657452_Ebook.pdf (on file with the Rutgers Computer and Technology Law Journal) [hereinafter ECC].

(2.) Apr. 11, 1980, S. Treaty Doc. No. 98-9, 1489 U.N.T.S. 3 (1984), available at http://www.uncitral.org/pdf/english/texts/sales/cisg/CISG.pdf (on file with the Rutgers Computer and Technology Law Journal) [hereinafter CISG].

(3.) G.A. Res. 51/162, U.N. Doe A/Res/51/162 (Jan. 30, 1997), available at http://www.uncitral.org/pdf/english/texts/electcom/05-89450_Ebook.pdf (on file with the Rutgers Computer and Technology Law Journal) [hereinafter UNCITRAL Model Law].

(4.) See ECC, supra note 1, [paragraph][paragraph] 23-24.

(5.) See id. [paragraph][paragraph] 25-26, 41.

(6.) UNCITRAL, Report of the United Nations Commission on International Trade Law on the Work of Its Thirty-eighth Session, [paragraph][paragraph] 1,166, G.A. Res. 21, U.N. GAOR, 60th Sess., Supp. No. 17, U.N. Doc. A/60/17 (July 26, 2005), available at http://www.uncitral.org/uncitral/en/commission/sessions/38th.html (on file with the Rutgers Computer and Technology Law Journal) [hereinafter U.N. Doc. A/60/17]. For a detailed account of the history and other relevant information concerning the ECC visit, see the UNCITRAL website at http://uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/ 2005Convention.html (last visited May 19, 2007) (on file with the Rutgers Computer and Technology Law Journal).

(7.) See UNCITRAL, Legal Aspects of Electronic Commerce--Explanatory Note on the Convention on the Use of Electronic Communications in International Contracts, U.N. Doc. A/CN.9/608 (Mar. 17, 2006); see also id. addenda 1-4, at U.N. Doc. A/CN.9/608/Add.1 (Mar. 17, 2006) [hereinafter U.N. Doc. A/CN.9/608/Add.1]; U.N. Doc. A/CN.9/608/Add.2 (Mar. 22, 2006) [hereinafter U.N. Doc. A/CN.9/608/Add.2]; U.N. Doc. A/CN.9/608/Add.3 (Mar. 22, 2006) [hereinafter U.N. Doe. A/CN.9/608/Add.3]; U.N. Doc. A/CN.9/608/Add.4 (Mar. 22, 2006) [U.N. Doc. A/CN.9/608/Add.4]; U.N. Doc A/CN.9/608/Add.2 (Mar. 22, 2006); U.N. Doc A/CN.9/608/Add.3 (Mar. 22, 2006); U.N. Doc A/CN.9/608/Add.4 (Mar. 22, 2006), all available at http://www.uncitral.org/ uncitral/en/commission/sessions/39th.html (on file with the Rutgers Computer and Technology Law Journal).

(8.) See Press Release, UNCITRAL, Gen. Assembly Adopts New Convention on Use of Electronic Commc'ns in Int'l Contracting, U.N. Doc. GA/10424 (Nov. 23, 2005), available at http://www.un.org/News/Press/docs/2005/ ga10424.doc.htm (on file with the Rutgers Computer and Technology Law Journal).

(9.) See Press Release, U.N. Office of Legal Affairs, Legal Instruments on Int'l Contracts, Safety of U.N. Personnel, U.N. Doc. 1/T/4395 (Jan. 12, 2006), available at http://www.un.org/News/Press/docs/2006/lt4395.doc.htm (on file with the Rutgers Computer and Technology Law Journal).

(10.) ECC, supra note 1, at art. 23(1).

(11.) Press Release, Signature Event to Promote Participation in New U.N. Convention on the Use of Electronic Comme'ns in Contract, U.N. Doc. UNIS/L/101 (June 13, 2006), available at https://www.unis.unvienna.org/unis/ pressrels/2006/unisll01.html?email=yes (on file with the Rutgers Computer and Technology Law Journal). The webcast of the event is available at U.N. Convention on the Use of Electronic Communications in International Contracts, http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/ 2005Convention.html (last visited May 19, 2007) (on file with the Rutgers Computer and Technology Law Journal).

(12.) CISG, supra note 2, at art. 20(1).

(13.) See ECC, supra note 1, at art. 20(2).

(14.) See U.N. Doc. A/CN.9/608/Add.4, supra note 7, [paragraph] 47.

(15.) See UNCITRAL, Report of the Working Group on Electronic Commerce on the Work of Its Forty-fourth Session, [paragraph] 49, U.N. Doc. A/CN.9/571 (Nov. 8, 2004), available at http://www.uncitral.org/uncitral/en/commission/sessions/ 38th.html (on file with the Rutgers Computer and Technology Law Journal) [hereinafter U.N. Doe. A/CN.9/571].