- Signatories to the Electronic Communications Convention
- Full Text of the Electronic Communications Convention (2005)
- Scope of Application of the Electronic Communications Convention
- Match-up of CISG Art. 13 with the Electronic Communications Convention
- Editorial Remarks: G. Alper
- Editorial Remarks on UCC Article 2 and U.S. Law: G. Alper
- UNCITRAL Clout cases on the Electronic Communications Convention
- Article: The Electronic Contracts Convention, the CISG, and New Sources of E-Commerce Law
- UK Report (2022): Electronic Trade Documents
Match-up of CISG Article 13 with the Electronic Communications Convention Article 9 (2)
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CISG Article 13 |
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Electronic Communications Convention Article 9(2) |
| For the purpose of this Convention "writing" includes telegram and telex. | Where the law requires that a communication or a contract should be in writing, or provides consequences for the absence of a writing, that requirement is met by an electronic communication if the information contained therein is accessible so as to be usable for subsequent reference. |
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"Writing" under the CISG and the Electronic Communications Convention
September 2022
I. Introduction
II. Functional Equivalency
A. CISG
B. Electronic Communications Convention
C. Intersection of the CISG and the Electronic Communications Convention
III. Conclusion
The CISG was adopted in the 1980's, in an era where the internet and electronic communications were perhaps nothing short of a mere fantasy. Since then, the world has emerged and electronic means of communication have become a part of society's every day life. One of the main criticisms of the CISG is that it is difficult to amend and as such, it falls short of keeping up to date with advancements in society. The CISG Advisory Council from time to time renders opinions to address these issues. CISG Advisory Council Opinion No. 1: Electronic Communications under CISG has been specifically issued to address advancements in the mode of communications, specifically electronic communications. Adopting a functional approach, it has been stated therein that "The term 'writing' in CISG also includes any electronic communication retrievable in perceivable form."
After the adoption of the CISG in the 1980's, in the 2000's, UNCITRAL has adopted another piece of uniform law instrument; the United Nations Convention on the Use of Electronic Communications in International Contracts ("Electronic Communications Convention"). The Electronic Communications Convention has entered into force in March 2013, however, it has not been widely recognized and only a handful of states have ratified it. The aim of the Electronics Convention is similar to that of the CISG in the sense that it envisions to harmonize international trade and remove obstacles. In essence, the Electronic Communications Convention also adopts a functional approach and establishes equivalence between written and electronic form.
II. Functional Equivalency
A. CISG
Unlike the U.S. Uniform Commercial Code, the CISG does not consist of a statute of frauds provision. As per CISG Art. 11 "A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form." However, the "writing" definition is essential in relation to declarations made by states concerning "formal requirements" (Art. 12 and Art. 96 CISG). Article 96 CISG enables contracting states to deviate from the freedom of form provision and require that formal requirements as per local laws are met for the formation, modification and termination of a contract. In such instances, the "writing" definition of Article 13 is used to interpret whether the formal requirements have been fulfilled. Over the years, courts have chosen to adopt broad interpretations in this regard in line with the functional approach adopted by the CISG- AC Opinion No:1. For example, in a recent 2022 case, the Dutch court held that "WhatsApp" communications were deemed to be writings as per CISG (Art. 13).
B. Electronic Communications Convention
The scope of application of the Electronic Communications Convention is broader than the CISG, in the sense that it does not only cover sales contracts, but it has a broad coverage including services, software and other cross- border transactions. However, its application is limited in the sense that only a handful of states have ratified it as of date.
Similar to the CISG, the Electronic Communications Convention does not foresee a form requirement under Article 9(1): "Nothing in this Convention requires a communication or a contract to be made or evidenced in any particular form." In line with the functional approach adopted by the CISG, the Electronic Communications Convention (Art. 9(2)) establishes functional equivalence of paper and electronic forms: “Where the law requires that a communication or a contract should be in writing, or provides consequences for the absence of a writing, that requirement is met by an electronic communication if the information contained therein is accessible so as to be usable for subsequent reference.”
The Electronic Communications Convention further provides for the satisfaction of the "signature" and "original" requirement through electronic means (Art. 9(3)). It also regulates times of dispatch and receipt in electronic form (Art. 10). Finally, the Electronic Communications Convention allows for the enforceability of contracts entered into by automated messaging systems (Art. 12).
C. Intersection of the CISG and the Electronic Communications Convention
Generally speaking, due to the limited number of states that have ratified the Electronic Communications Convention, the application of it in CISG contracts is limited. The Convention would apply to a contract governed by the CISG only when the private international law rules point to the laws of a contracting state of the Electronic Communications Convention. In terms of the CISG Art. 96 declarations, this is further limited, as the number of states that have made a declaration and ratified the Electronic Communications Convention is further limited (i.e. Russian Federation- with exceptions in line with reservations made as per the Electronic Communications Convention, Paraguay).
The CISG does not require retention of a contract in "original" form and a parol evidence type of rule does not exist, as such the satisfaction of "original" as per the Electronic Communications Convention is not pertinent. This is rather pertinent to the New York Convention in enforcement proceedings for arbitral awards.
The intersection of the CISG and the Electronic Communications Convention can primarily be noted in "invitation to offers" and "offers". Article 11 of the Electronic Communications Convention clarifies that a proposal to conclude a contract made through electronic means which is not addressed to specific parties (such as that available on the offeror's website) is an invitation to an offer, the acceptance of it does not amount to a binding acceptance, but it amounts to an offer. The Electronic Communications Convention also has rules for time of receipt and dispatch exercised in electronic forms; these rules do not touch upon substantive matters as compared with the CISG, but they may be used to supplement and interpret the CISG, when - of course- the Electronic Communications Convention is applicable to a CISG contract.
The Electronic Communication Convention is not widely recognized as compared to the CISG. However, when the scope of application of the two Conventions overlap, the Electronic Communications Convention may further the substitution of electronic means for the fulfillment of the "writing" definition. It is important that the Electronic Communications Convention is adopted by non- contracting states, so as to further the uniform application and understanding of cross- border contractual laws and further advance uniformity in the application of the CISG.
Electronic Communications, UCC Article 2 Amendments and U.S. Law
September 2022
The U.S. is not a party to the Electronic Communications Convention. However, the U.S. has enacted certain laws for the use of electronic records and communications.The U.S. Congress enacted the Electronic Signatures in Global and National Commerce Act (“ESIGN”) in 2000; later on, all States (apart from New York) enacted the ULC’s model Uniform Electronic Transactions Act (“UETA”) (1). In 2000, before UETA had been adopted by other U.S. states, New York had enacted the Electronic Signature and Records Act (“ESRA”) providing, for functional equivalency for recognition of paper and electronic communications and signatures under the provisions set forth therein.
Furthermore, the ULC's latest 2022 amendments to the UCC (2), including UCC Article 2- which also governs the [domestic] sale of goods-, promote medium neutrality by replacing the term of “writing” with the term of “record” in various articles. Although, UCC is not applicable to CISG contracts, it is likely that the courts will turn to local U.S. law, when the CISG does not specifically govern an issue. The UCC amendments to Article 2 are generally speaking, in line with the latest global advancements, the CISG- AC Opinion No:1 and the Electronic Communications Convention.
(1) While ESIGN relates to Federal law, UETA and ESRA relate to state law.
(2) As of date, the ULC's latest amendments are to be promulgated to states and thereafter, the states are to consider enactment.