Sofian Azzabi - Signature Electronique et Droit de la Preuve

Author biography:
Tana Pistorius is an associate professor in the Department of Mercantile Law at the University of South Africa. She holds the degrees BA (Pret) LLB (Unisa) LLM (Pret) and LLD (Pret). Before joining Unisa in 1991, she practiced as an attorney and notary. Her areas of specialization include intellectual property law, E-commerce and Internet law. She has published numerous scholarly articles on a wide range of topics. She has delivered academic papers at national and international conferences. She is currently doing research for a book on E-commerce and is involved in the development of a new LLB module on E-commerce at Unisa.

Fax no: 012 429 3343
Tel no: Office 012 429 8334
Home 012 4607011
Mobile 082 756 6827
Docex 163 Pretoria
E mail: Pistot@alpha.unisa.ac.za

ABSTRACT

In this paper legislative initiatives to facilitate electronic commerce is investigated. UNCITRAL’s Model Law on Electronic Commerce is used as the basic document of reference. Its provisions on some of the basic legal issues surrounding the formation of contracts on the Internet, namely the requirements of “writing” and “signature” in the electronic environment, attribution of messages and the time when and the place where an Internet contract is concluded is examined. Comparative reference is also made to enabling legislation adopted in Australia, Canada and the United States.

ACKNOWLEDGEMENTS:

Tana Pistorius ‘Formation of Internet Contracts: An Analysis of the Contractual and Security Issues (1999) 11 South African Mercantile Law Journal 282-299.

EXECUTIVE SUMMARY

The Internet has brought about fundamental changes to international commerce. Territorial borders and the borders that previously existed between companies and customers, sellers and purchasers and service providers and clients have all fused. All these parties to contracts now meet in virtual shopping malls and virtual boardrooms where the rules have changed, or where no rules exist.

The application of principles of commercial law to electronic commerce is in many ways uncertain. These uncertainties have largely been brought about by the shift from paper to electronic trading. The question thus arises whether electronic contracts are binding and enforceable, when and where they are deemed to be entered into.

The most important advantages that electronic commerce brings - the ease and speed with which a trans-national communications may be exchanged and transaction concluded – is also the source of some of the security concerns which face the parties to such as contract – namely authentication and integrity. These security concerns relate to the level of trust present in the transfer of information between parties.

The communication of paperless messages purporting to establish legal relationships has raised complex legal questions regarding the legal effect of such messages. Many national commercial laws cannot be applied satisfactorily to modern communication techniques and legal uncertainty prevails. Here South Africa is no exception as our law of contracts and trade practices also evolved in a paper-based society. It is, for instance, unclear to what extent concepts such as “writing”, “document” or “signature” may successfully be applied to information that is communicated in an electronic or digital environment.

Digital signature technology forms the basis for the formation of legally binding contracts in the course of commercial transactions. The content is secure and has the same forensic effect of a signed paper message. The development of a common position on this issue is very important for the security of international e-commerce. However, balance is everything, as a restrictive and conservative approach to encryption may result in the stifling of the global economy, whereas a too slack approach may result in insecurities in electronic commerce.

The use of digital signatures and digital certificates in fulfilling authentication and identification functions are becoming a standard norm in electronic commerce. Again legislative action is indicated and here also, the approach of the Model Law and Canadian UECA could be illuminating. South African commercial law should be adapted to adequately address the areas of where the technological advances have rendered our common- law principles obsolete. Only then will South African businesses be able to trade in cyber-commerce within the realms of electronic security and legal certainty.

INTRODUCTION

The Internet is de-centralised and self-regulatory in nature. Security concerns are on par with the inherent characteristics of the Internet. Furthermore, the "virtual closeness" and "personal" contact and interaction on the Internet are belied by the physical realities, such as no guarantee for the performance of basic obligations, namely the delivery of goods purchased.

The expanding penetration of the Internet in trans-national transactions is alarming and an additional security concern of Internet commerce is the growing expansion of Electronic Data Interchange (EDI) agreements into open groups.^¹ It is noted that information security is one of the biggest challenges to global electronic commerce over open networks.^²

The lack of cyberspace security may be ascribed to basic infrastructure design flaws, the ease of access to servers and insecure data transmission media.^³ Although TCP/IP protocol is embraced by users as the protocol of choice due to its ease of use and flexibility the access codes can easily be duplicated and unauthorized access may then be obtained.

Internet contracts almost invariably involve foreign elements and conflict of laws thus plays an important role in determining the enforceability of contracts. Principles of South African contract law on the time when and place where an Internet contract will take effect, is however, obscure. Neither the expedition theory, nor the information theory may be applied with ease to the technological means whereby an e-mail or Internet contract can be formed.^⁴

It is against this background of increasing legal uncertainty and the exponential increase in international e-trade that the United Nations Commission on International Trade Law established a Working Group to draft legal rules on electronic commerce.^⁵ The UNCITRAL Model Law on Electronic Commerce^⁶ was adopted on 12 June 1996 and aims to create a more secure legal environment for what has become known as "electronic commerce" by providing a tool for states to enhance their legislation as regards paperless communication and storage of information.^⁷

Numerous jurisdictions that have adopted legislative measures to facilitate e-commerce moulded their enabling instruments on the Model Law.^⁸ A similar approach is strongly advocated for South Africa.

The background to the Model Law will first be examined with reference to its objectives, scope, structure and approach the e-commerce legislation. Thereafter the Model Law’s provisions will be reviewed. Reference will be made to: definitions, interpretation, variation by agreement, legal recognition of data messages, incorporation by reference, writing, signatures (including digital signatures), formation and validity of contracts, recognition by parties of data messages, attribution of messages, acknowledgment of receipt, and lastly time and place of dispatch of data messages.

The guidelines to enactment will in each instance be discussed. Reference will also be made to the enactment of concomitant legislative provisions in other jurisdictions. Here, in particular, the provisions of the UETA, the Canadian UECA and the Australian Electronic Transactions Act will be discussed.

INTRODUCTION TO THE UNCITRAL MODEL LAW ON ELECTRONIC COMMERCE (“THE MODEL LAW)

Objectives of the Model Law

The use of modern means of communication such as electronic mail for the conduct of international trade transactions has been increasing rapidly and is expected to develop further as technical supports and Global Information Networks expand.^⁹

In a number of countries the existing legislation governing communication and storage of information was inadequate or outdated because it did not contemplate the use of electronic commerce. Although the use of EDI and electronic mail was becoming widespread, this need for legal certainty was also felt in many countries with respect to such communication techniques as tele-copy and telex.^¹⁰ UNCITRAL was thus prompted to formulate model legislation on electronic commerce to address these legal lacunae.^¹¹

It is noted that the Model Law seeks to obviate barriers to international trade due to inadequate national legislation.^¹² UNCITRAL is of the opinion that the objectives of the Model Law, which include enabling or facilitating the use of electronic commerce and providing equal treatment to users of paper-based documentation and to users of computer-based information, are essential for fostering economy and efficiency in international trade.^¹³ The Guide expresses the opinion that disparities among, and uncertainty about, national legal regimes governing the use of such communication techniques may contribute to limiting the extent to which businesses may access international markets.^¹⁴ The adoption of enabling legislative measures for South Africa is imperative for fostering its fledgling I-economy.

Another advantage of the Model law is that it may be used as a tool for interpreting existing international conventions and other international instruments that create legal obstacles to the use of electronic commerce, for example by prescribing that certain documents or contractual clauses be made in written form.^¹⁵ The provisions of the Model Law places paper-based documentation on par with that of computer-based information. It is also noted that by incorporating these features in national legislation States would create a media-neutral environment.^¹⁶

The adoption of a technology-neutral solution is also very important. Commercial law developments have traditionally followed behind new commercial practices^¹⁷ and legal development may be expected to lag behind the revolutionary developments of information technology.^¹⁸

The scope of the Model Law is "electronic commerce". While a definition of "electronic data interchange (EDI)" is provided in article 2, the Model Law does not specify the meaning of "electronic commerce".^¹⁹ The means of communication encompassed in the notion of "electronic commerce" is vast. It includes modes of transmission based on the use of electronic techniques, communication by means of EDI,^²⁰ transmission of electronic messages involving the use of either publicly available standards or proprietary standards and the transmission of free-formatted text by electronic means, such as the Internet. The notion of "electronic commerce" may also cover the use of techniques such as telex and telecopy.^²¹

The Model Law’s provisions are intended to apply also in the context of less advanced communication techniques, such as telecopy, although the Model Law was drafted with constant reference to the more modern communication techniques, such as EDI and electronic mail. It is noted that there may exist situations where digitised information initially dispatched in the form of a standardized EDI message might, at some point in the communication chain be forwarded in the form of a computer-generated telex or in the form of a telecopy of a computer printout.^²² A mixture of traditional and electronic forms of communication may thus be used: a data message may be initiated as an oral communication and end up in the form of a telecopy, or it may start as a telecopy and end up as an EDI message.

The Model Law recognises that users' need a consistent set of rules to govern a variety of communication techniques that might be used interchangeably. As a matter of principle, no communication technique is excluded from the scope of the Model Law since future technical developments need to be accommodated.^²³ The Guide notes that the Model Law should be regarded as a balanced and discrete set of rules, which are recommended to be enacted as a single statute, although it can be implemented, in various ways, either as a single statute or in several pieces of legislation.^²⁴

The Model Law is a "framework" law that must be supplemented by technical regulation. It does not set forth all the rules and regulations that may be necessary to implement the use of modern techniques for recording and communicating information in various types of circumstances in an enacting State.^²⁵ Moreover, the Model Law is not intended to cover every aspect of the use of electronic commerce.

It should be noted that the techniques for recording and communicating information considered in the Model Law may, beyond raising matters of procedures necessary to implement technical regulations, also raise certain legal questions related to other law disciplines. Such other bodies of law may include, for example, the applicable administrative, contract, criminal and judicial-procedure law, which the Model Law is not intended to deal with.^²⁶

The "functional-equivalent" approach

The Model Law recognises that legal requirements prescribing the use of traditional paper-based documentation constitute the main obstacle to the development of modern means of communication.^²⁷ In the preparation of the Model Law, consideration was given to the possibility of dealing with impediments to the use of electronic commerce posed by such requirements in national laws by way of an extension of the scope of such notions as "writing", "signature" and "original", with a view to encompassing computer-based techniques. Such an approach is used in a number of existing legal instruments. ^²⁸

It was observed that the Model Law should permit States to adapt their domestic legislation to developments in communications technology applicable to trade law without necessitating the wholesale removal of the paper-based requirements themselves or disturbing the legal concepts and approaches underlying those requirements. At the same time, it was said that the electronic fulfilment of writing requirements might in some cases necessitate the development of new rules. This was due to one of many distinctions between EDI messages and paper-based documents, namely that the latter were readable by the human eye, while the former were not so readable unless reduced to paper or displayed on a screen.^²⁹

The Model Law thus relies on a new approach, sometimes referred to as the "functional equivalent approach", which is based on an analysis of the purposes and functions of the traditional paper-based requirement with a view to determining how those purposes or functions could be fulfilled through electronic-commerce techniques.^³⁰ It is also important to note that it is one of the objectives of Model Law that the adoption of the functional-equivalent approach should not result in imposing on users of electronic commerce more stringent standards of security (and the related costs) than in a paper-based environment.^³¹

The Model Law adopted a flexible standard, taking into account the various layers of existing requirements in a paper-based environment: when adopting the "functional-equivalent" approach, attention was given to the existing hierarchy of form requirements, which provides distinct levels of reliability, tractability and inalterability with respect to paper-based documents.^³² For example, a data message, in and of itself, cannot be regarded as an equivalent of a paper document as it is of a different nature and does not necessarily perform all conceivable functions of a paper document. Furthermore, the requirement that data be presented in written form (which constitutes a "threshold requirement") is not to be confused with more stringent requirements such as "signed writing", "signed original" or "authenticated legal act".^³³

The Model Law singles out basic functions of paper-based form requirements, with a view to providing criteria, which, once they are met by data messages, enable such data, messages to enjoy the same level of legal recognition as that of paper documents performing the same function.^³⁴ It should be noted that the functional-equivalent approach has been taken in articles 6 to 8 of the Model Law^³⁵ but not with respect to other legal concepts dealt with in the Model Law.^³⁶

Default rules and mandatory law

The drafting of the Model Law was undertaken because it was realised that that, in practice, solutions to most of the legal difficulties raised by the use of modern means of communication are sought within contracts. The Model Law embodies the principle of party autonomy in article 4 with respect to the provisions contained in chapter III of part one.^³⁷ It should be noted that the notion of "system rules" might cover two different categories of rules, namely, general terms provided by communication networks and specific rules that might be included in those general terms to deal with bilateral relationships between originators and addressees of data messages. Article 4 (and the notion of "agreement" therein) is intended to encompass both categories of "system rules".^³⁸

Parties may use these rules as a basis for concluding such agreements. They may also be used to supplement the terms of agreements in cases of gaps or omissions in contractual stipulations. In addition, they may be regarded as setting a basic standard for situations where data messages are exchanged without a previous agreement being entered into by the communicating parties, e.g., in the context of open-networks communications.^³⁹

However, the provisions contained in chapter II of part one are of a different nature. One of the main purposes of the Model Law is to facilitate the use of modern communication techniques and to provide certainty with the use of such techniques where obstacles or uncertainty resulting from statutory provisions could not be avoided by contractual stipulations.^⁴⁰ Well-established rules regarding the form of legal transactions are normally of a mandatory nature since they generally reflect decisions of public policy. The provisions contained in chapter II are regarded as a collection of exceptions to well-established rules.

The provisions contained in chapter II should be regarded as stating the minimum acceptable form requirement and are, for that reason, of a mandatory nature, unless expressly stated otherwise in those provisions.^⁴¹ It is noted that the indication that such form requirements are to be regarded as the "minimum acceptable" should not, however, be construed as inviting States to establish requirements stricter than those contained in the Model Law.^⁴²

DEFINITIONS

Model Law

Article 1 provides that the Model Law applies to any kind of information^⁴³ in the form of a data message used in the context of commercial activities.^⁴⁴ In paragraph 24 of the Guide it is noted that the purpose of article 1, which is to be read in conjunction with the definition of “data message” in article 2(a), is to delineate the scope of application of the Model Law.

The approach used in the Model Law is to provide in principle for the coverage of all factual situations where information is generated, stored or communicated, irrespective of the medium on which such information may be affixed. It was felt during the preparation of the Model Law that exclusion of any form or medium by way of a limitation in the scope of the Model Law might result in practical difficulties and would run counter to the purpose of providing truly “media-neutral” rules. The focus of the Model Law is on “paperless” or “electronic” means of communication and, except to the extent expressly provided by the Model Law, the Model Law is not intended to alter traditional rules on paper-based communications.^⁴⁵

The focus of the Model Law is commercial transactions against the background of trade relationships, thus the definition of “commercial activities”.^⁴⁶ However, the Model Law applies to all kinds of data messages that might be generated, stored or communicated, and it does not prevent States from extending its application non-commercial electronic commerce.^⁴⁷ In principle, the Model Law applies to both international and domestic uses of data messages, but may of course be restricted to international application.^⁴⁸ However, dividing communications in international trade into purely domestic and international parts might be difficult in practice and a duality of regimes will create legal uncertainty.^⁴⁹

Many legislative instruments have adopted the sphere of application. The UETA has extended its scope to all transactions.^⁵⁰ The Committee has been concerned to strike the right balance between expanding the scope beyond contractual transactions, as in the Massachusetts^⁵¹ and Illinois models,^⁵² and limiting the scope to purely contractual transactions that might impair the usefulness of the statute and create potential ambiguity as to its applicability to certain transactions.^⁵³

Article 2 of the Model Law includes definitions of key terms, namely “data message”,^⁵⁴ “originator”,^⁵⁵ “addressee”,^⁵⁶ “intermediary”,^⁵⁷ and “information system”.^⁵⁸ These definitions are explained in the Guide. It is noted that the notion of "data message" is not limited to communication but is also intended to encompass computer-generated records that are not intended for communication. Thus, the notion of "message" includes the notion of "record". However, a definition of "record", in line with the characteristic elements of "writing" in article 6 may be added in jurisdictions where that would appear to be necessary.

Data Message: The definition of "data message" includes all types of messages that are generated, stored, or communicated in electronic, optical or digital form. For that purpose, all means of communication and storage of information that might be used to perform functions parallel to the functions performed by the means listed in the definition are intended to be covered by the reference to "similar means", although, for example, "electronic" and "optical" means of communication might not be, strictly speaking, similar. For the purposes of the Model Law, the word "similar" connotes "functionally equivalent". The Model Law was thus intended to apply also to future technical developments. "Data message” is defined to include the revocation or amendment of that message by another message.^⁵⁹

Electronic Data Interchange (EDI) Agreements: Trade partners who wished to trade in specialised closed networks, but in a secure environment led to the development of EDI. Electronic documents were thus developed that involved the computerised exchange of standardised and approved messages between computer applications by remote data processing without human intervention^⁶⁰ EDI contracts involve the transmission of data between computers on a basis of common language. An example of such a transaction is where a computer system, which manages stock automatically, orders stock from seller, and seller’s computer automatically accepts the order.^⁶¹

“Trade Terms and Conditions” (TTC), which cover basic contractual issues such as product warranties and rules for return of defective goods, underlie these transactions.^⁶² Wright^⁶³ makes the interesting comment that no litigation that involve EDI transactions had been published by 1991. EDI agreements obviously created a very closed and certain legal environment.^⁶⁴ These agreements have been used on a large scale internationally.^⁶⁵

Important differences exist between EDI contracts and Internet contracts. Smith^⁶⁶ highlights the following inherent differences: first, EDI takes place in a highly structured form of messaging and pre-determined fields, whereas the Internet involves free-form communication. Secondly, EDI assumes an on-going relationship and the parties usually have an “interchange agreement “ in place, which sets out the basis for the exchange. The Internet involves the casual buying of goods and services with no prior underlying agreement. Thirdly, EDI involves only computers whereas Internet contracts involve the conscious act of the buyer. Fourthly, EDI is typically carried out over a value-added network with guarantees of services and qualities and certainty as to the identity of the carrier, whereas the Internet does not provide any guarantees of certainty.

The Model Law’s definition of “EDI”,^⁶⁷ is drawn from the definition adopted by the Working Party on Facilitation of International Trade Procedures of the Economic Commission for Europe, which is the United Nations body responsible for the development of UN/EDIFACT technical standards.^⁶⁸

The question whether the definition of EDI necessarily implies that EDI messages are communicated electronically from computer to computer, or whether it also cover exceptional or incidental types of situation where data structured in the form of an EDI message would be communicated by means that do not involve telecommunications systems,^⁶⁹ is not addressed.^⁷⁰ It is, however, noted that irrespective of whether digital data transferred manually is covered by the definition of "EDI", it is covered by the definition of "data message" under the Model Law.^⁷¹ The term ‘data message’ explicitly comprises information sent by EDI and electronic mail. Although the focus is on paperless means of communication the law is intended to provide ‘truly ‘media-neutral’ rules’ covering all situations where information is generated, stored or communicated.^⁷²

“Originator” and “Addressee”: It is clear from the definitions of “originator”,^⁷³ and “addressee”,^⁷⁴ that data messages that are generated automatically by computers without direct human intervention should be regarded as "originating" from the legal entity on behalf of which the computer is operated.^⁷⁵ Data messages that are generated automatically by computers without direct human intervention are also intended to be covered.^⁷⁶ However, the Model Law should not be misinterpreted as allowing for a computer to be made the subject of rights and obligations.

The "addressee" under the Model Law is the person with whom the originator intends to communicate by transmitting the data message, as opposed to any person who might receive, forward or copy the data message in the course of transmission.^⁷⁷ It should be noted that, under the definitions of "originator" and "addressee" in the Model Law, the originator and the addressee of a given data message could be the same person, for example in the case where the data message was intended for storage by its author.^⁷⁸

It is noted that the addressee who stores a message transmitted by an originator is not itself intended to be covered by the definition of "originator". The definition of "originator" should cover not only the situation where information is generated and communicated, but also the situation where such information is generated and stored without being communicated.^⁷⁹ However, where a recipient merely stores a data message, such recipient will not fall under the definition of “originator”. might be regarded as an originator.

"Intermediary”: The paramount importance of intermediaries in the field of electronic communications is recognised, as an "intermediary" is needed in the Model Law to establish the necessary distinction between originators or addressees and third parties.^⁸⁰ The main functions of an intermediary are receiving, transmitting or storing data messages on behalf of another person. Additional "value-added services" may be performed by network operators and other intermediaries, such as formatting, translating, recording, authenticating, certifying and preserving data messages and providing security services for electronic transactions.^⁸¹ Professional and non-professional intermediaries are included in the definition.

"Information System”: The Model law’s definition of "information system" covers a wide range of technical means used for transmitting, receiving and storing information. The notion of "information system" could be indicating a communications network, and in other instances could include an electronic mailbox or even a telecopier and the location of the information system is totally irrelevant.^⁸²

Australian Electronic Transactions Act

Definitions

The definitions in the Australian Electronic Transactions Act have been drafted in accordance with the basic principles of media neutrality and technology neutrality. The aim of using media neutral and technology neutral terms is to focus on the purpose of the legal requirement, rather than the form by which that requirement is satisfied and to prevent continuous amendments to deal with technological changes.^⁸³

In section 5(1) of the Australian “information system” is defined as a system for generating, sending, receiving, storing or otherwise processing electronic communications. This term includes all or part of a communications network.

Electronic Communication

The definition is consistent with similar definitions of electromagnetic energy in the Telecommunications Act 1991 and Telecommunications Act 1997 and is intended to have the widest possible meaning. Communications by means of guided electromagnetic energy is intended to include the use of cables and wires, for example optic fibre cables and telephone lines. Communications by means of unguided electromagnetic energy is intended to include the use of radio waves, visible light, microwaves, infrared signals and other energy in the electromagnetic spectrum.

The use of the term "unguided" is not intended to refer to the broadcasting of information, but instead means that the electronic magnetic energy is not restricted to a physical conduit, such as a cable or wire. The term "communication" should also be interpreted broadly. Information that is recorded, stored or retained in an electronic form but is not transmitted immediately after being created is intended to fall within the scope of an "electronic communication". ^⁸⁵

“Information” means information in the form of data, text, images or speech. These terms should be interpreted broadly. These terms are not intended to be mutually exclusive and it is possible that information may be in more than one form. For example, information may be in the form of text in a paper document but is then transferred in to the form of data in an electronic document. The term "information" is used in the definition of electronic communication and is also used throughout the Bill. While data is generally used to refer to information that is operated upon by a computer program, it is defined here to also include the definition of computer program within the meaning of the Copyright Act 1968.^⁸⁶

WRITING

Article 6 of the Model Law

Article 6(1)^⁸⁷ of the Model law provides that where the law requires information to be in writing, that requirement is met by a data message if the information contained therein is accessible so as to be usable for subsequent reference. This provision is applicable whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the information not being in writing.^⁸⁸
Article 6(3) recognises that the matter of specifying exclusions should be left to enacting States, an approach that would take better account of differences in national circumstances.^⁸⁹

Article 6 is intended to define the basic standard to be met by a data message to be regarded as the equivalent of a “paper-based” document.^⁹⁰ The Guide to the Model Law^⁹¹ gives the following non-exhaustive list to indicate why national laws require the use of “writings”:

The requirement that data be presented in written form (which can be described as a "threshold requirement") should thus not be confused with more stringent requirements such as signature and originality.^⁹² article 6 focuses upon the basic notion of the information being reproduced and read. That notion is expressed in article 6 in terms that were found to provide an objective criterion, namely that the information in a data message must be accessible so as to be usable for subsequent reference.^⁹³ Here “usable” includes human and/or computer use and “accessible” is meant to imply that information in the form of computer data should be readable and interpretable, and that the software that might be necessary to render such information readable should be retained.^⁹⁴ As to the notion of "subsequent reference", it was preferred to such notions as "durability" or "non-alterability", which would have established too harsh standards, and to such notions as "readability" or "intelligibility", which might constitute too subjective criteria.^⁹⁵

Section 7(a)-(b) of the UETA provides that a record, signature or contract may not be denied legal effect, validity or enforceability solely because it is in the form of an electronic record. It also provides that if a law requires a record or signature to be in writing, or provides consequences if it is not, an electronic record satisfies that rule^⁹⁶ and a person may establish reasonable requirements regarding the type of records which will be acceptable to her.^⁹⁷

The draft gives effect to the provisions of articles 5 and 6 of the Model Law. Section 7 does not deal specifically with the Model Law requirements of accessibility and subsequent reference, although the definition of “record” does require that the information be “retrievable in perceivable form”.

The Canadian solution is elegant and very simple. Section 5 of the Uniform Electronic Commerce Act provides that information shall not be denied legal effect or enforceability solely by reason that it is in electronic form. It is also provided that a requirement for information to be in writing is satisfied by information in electronic form if the information is accessible so as to be usable for subsequent reference.^⁹⁸

It is noted that a requirement under law for a person to provide information in writing to another person is satisfied by the provision of the information in an electronic document, where the electronic document that is provided to the other person is accessible by the other person and capable of being retained by the other person so as to be usable for subsequent reference.^⁹⁹ The definition of "electronic" includes created, recorded, transmitted or stored in digital form or in other intangible form by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means and "electronically" has a corresponding meaning.

Then in section 20(1), a provision is contained that expressly recognizes the enforceability of “click-on” contracts. It is provided that unless the parties agree otherwise, an offer or the acceptance of an offer, or any other matter that is material to the formation or operation of a contract, may be expressed by means of an electronic document or by an action in electronic form, including touching or clicking on an appropriately designated icon or place on a computer screen or otherwise communicating electronically in a manner that is intended to express the offer, acceptance or other matter. The legal effect of electronic contracts is also recognized. It is provided that a contract shall not be denied legal effect or enforceability solely by reason that an electronic document was used in its formation.^¹⁰⁰

Article 9 of the Australian Electronic Transactions Act deals with providing information in writing and is based upon article 6 of UNCITRAL Model Law. Article 9 provides that the requirement to give information in writing is taken to have been met if the person gives the information by means of an electronic communication. Article 9(1) and (2) allow a person to satisfy a requirement or permission to give information in writing under a law of the Commonwealth by providing that information by means of an electronic communication, subject to the general condition that, at the time the information was given, it was reasonable to expect that the information in the form of an electronic communication would be readily accessible so as to be useable for subsequent reference.^¹⁰¹

In addition, where a person must provide the information to a Commonwealth entity the person must comply with any information technology requirements in relation to the particular type of electronic communication to be used^¹⁰² and any requirements relating to the verification of the receipt of the information.^¹⁰³ Finally, where the information is required or permitted to be given to a person who is not a Commonwealth entity that person must consent to the information being given by means of an electronic communication^¹⁰⁴

ELECTRONIC SIGNATURES

Lefebvre^¹⁰⁵ notes that a signature, be it in electronic or hand-written format, fulfils a dual function. On the one hand it identifies the signatory and party to the contract and on the other hand it expresses her willingness to be bound by the contract. A third function may be identified: a signature also testifies to the true content of the agreement at the time of signing.

The Guide to the Model Law provides that in addition, a signature could perform a variety of functions, depending on the nature of the document that was signed.^¹⁰⁶ For example, a signature might attest to the intent of a party to endorse authorship of a text; the intent of a person to associate itself with the content of a document written by someone else; the fact that, and the time when, a person had been at a given place.^¹⁰⁷

It may be noted that, alongside the traditional handwritten signature, there exist various types of procedures (e.g., stamping, perforation), that are sometimes also referred to as "signatures", which provide various levels of certainty, exist alongside the handwritten signature.^¹⁰⁸ In some jurisdictions it is required that contracts for the sale of goods above a certain amount should be "signed" in order to be enforceable.^¹⁰⁹ However, the concept of a signature adopted in that context is such that a stamp, perforation or even a typewritten signature or a printed letterhead might be regarded as sufficient to fulfil the signature requirement. At the other end of the spectrum, there exist requirements that combine the traditional hand written signature with additional security procedures such as the confirmation of the signature by witnesses or the function of notaries in certifying a signature.^¹¹⁰

An inherent problem of the dematerialised and intangible nature of electronic contracts was the inability to affix signatures to these agreements fulfilling the above-mentioned functions. Although varying levels of “security” or “certainty” may be indicated by traditional means “signatures”, the notion of signature is intimately linked to the use of paper.^¹¹¹ Signature requirements currently present barriers to electronic commerce.^¹¹²

Several international initiatives were also taken to secure electronic commerce with some form of electronic authentication law.^¹¹³ Technology has been deployed to address and fulfil the authentication and identification functions are impractical and sometimes impossible where Internet contracts and other digital or electronic agreements are concluded.^¹¹⁴

Legal initiatives include either electronic signature laws, or digital signatures or other public key-styled (“PKI”) technologies. Some states in the United States have introduces legislation that address both digital and electronic signatures.^¹¹⁵ These initiative may be divided into three categories, namely prescriptive,^¹¹⁶ criteria-based^¹¹⁷ and signature enabling.^¹¹⁸

The Singapore Electronic Transaction Act should be noted, as both digital signatures and electronic signatures are addressed. This Act seems to grant a special status to digital signatures. As Endeshaw^¹¹⁹ explains:

Public key systems may be used to provide assurance to the recipient that the person who sent the message or data is actually its author. Public key systems may also be used to ensure the integrity of the data transmission^¹²⁰ Public key cryptography can thus be used to generate digital signatures. Public key encryption assures two things for commercial actors: first that their messages are secure and secondly, that other transacting parties are authenticated.

Using this technology, senders and receivers of electronic messages each posses two keys - a public key and a private key - one of which is never shared with anybody, and one which is shared with everybody. The two keys correspond, so that whatever is encode with the one key, can be decoded with the other key^¹²¹

Reversing the public key cryptography described above creates digital signatures. The digital signature is an attachment to a set of data which is composed by taking the output of a hash function, or digest, of the original data that is encrypted with the sender's private key. The hash function puts the original data through an algorithm, resulting in a data sequence unique to the particular message, but much shorter than the message itself^¹²². The digital signature can only be decrypted if the recipient has the correct public key. This allows the recipient to verify the identity of the sender.

The use of public key cryptography for digital signatures requires the assistance of a trusted third party - also known as a certifier, who establishes that the holders of public keys are who they purport to be^¹²³. Certifies thus identify public key holders and publish and update public keys, a process known as certificate issuance^¹²⁴ In the Singapore Electronic Transactions Act a whole new structure and detailed standards have been specified (arguably beyond those laid down for electronic signatures). Indeed, the standing and functioning of certification authorities (CAs) occupies a sizeable portion of the Act.^¹²⁵

The CAs are subject to standards and controls specified in Singapore’s Electronic Transactions Act of 1998, because they assume a “position of trust” and hence need to undergo such standards and controls for the public to have confidence in them. However, certification is voluntary, but those operating upon licence and approval from the authorities enjoy the evidentiary presumptions accorded by section 21.^¹²⁶

It has been noted that attempts to develop rules on standards and procedures to be used as substitutes for specific instances of "signatures" are undesirable as it would create a risk of tying the legal frameworks to a given state of technical development.^¹²⁷ In general, technology “neutral” solutions are thus sought.

Article 7 provides that where the law requires a signature of a person, that requirement is met in relation to a data message if: (a) a method is used to identify that person and to indicate that person's approval of the information contained in the data message; and (b) that method is as reliable as was appropriate for the purpose for which the data message was generated or communicated, in light of all the circumstances, including any relevant agreement.

Article 7(2) provides that sub-section (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences in the absence of a signature. Section 7(3) also makes provision for certain exceptions.

Article 7 thus focuses on the two basic functions of a signature, namely to identify the author of a document and to confirm that the author approved the content of that document. Article 7(1)(a) establishes the principle that, in an electronic environment, the basic legal functions of a signature are performed by way of a method that identifies the originator of a data message and confirms that the originator approved the content of that data message.^¹²⁸ The method used under paragraph Article 7(1)(a) should be as reliable as is appropriate for the purpose for which the data message is generated or communicated, in the light of all the circumstances, including any agreement between the originator and the addressee of the data message.^¹²⁹

It is noted in the Guide^¹³⁰ that in determining whether the method used under paragraph (1) is appropriate, legal, technical and commercial factors that may be taken into account include the following:

No distinction is made between the situation in which users of electronic commerce are linked by a communication agreement and the situation in which parties had no prior contractual relationship regarding the use of electronic commerce.^¹³¹ Thus, article 7 may be regarded as establishing a basic standard of authentication for data messages that might be exchanged in the absence of a prior contractual relationship and, at the same time, to provide guidance as to what might constitute an appropriate substitute for a signature if the parties used electronic communications in the context of a communication agreement.

The Model Law is thus intended to provide useful guidance both in a context where national laws would leave the question of authentication of data messages entirely to the discretion of the parties and in a context where requirements for signature, which were usually set by mandatory provisions of national law, should not be made subject to alteration by agreement of the parties.

It is noted in the Guide that the notion of an "agreement between the originator and the addressee of a data message" is to be interpreted as covering not only bilateral or multilateral agreements concluded between parties exchanging directly data messages (e.g., “trading partners agreements” or “EDI” agreements) and also agreements involving intermediaries such as networks (e.g., "third-party service agreements").^¹³²

UETA

Section 7(a) provides that legal recognition of electronic signatures^¹³³ will not be denied legal effect, validity or enforceability solely because it is in the form of an electronic signature. It is provided in section 7(b) that where the rule of law requires a signature, or provides consequences in the absence of a signature, the rule of law is satisfied with respect to an electronic record if the electronic record includes an electronic signature. Furthermore, a party may establish reasonable requirements regarding the method and type of signatures, which will be acceptable to it.^¹³⁴

Section 9 provides for attribution and effect of electronic records. This provision supports technology neutrality and is limited to validating electronic signatures for the purpose of applicable legal signing requirements. It provides that an electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including showing of the efficacy of any security procedure applied to determine the person to which the electronic signature was attributable.^¹³⁵ The effect of an electronic record or signature attributable to a person is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption.^¹³⁶

Australian Electronic Transactions Act

Article 10^¹³⁷ is based upon article 7 of the UNCITRAL Model Law. The method a person chooses to use to satisfy the signature requirement must both identify the person and their approval of the contents of the electronic communication. In establishing the person's identity, the signature method need not necessarily be a unique identifier. Rather, it must identify that person sufficiently for the purposes of that communication.

Some signature technologies, such as digital signatures, will, simply by the nature of the way they operate, also verify the integrity of the electronic communication. However, paragraph (a) only requires that the signature method allow a person to indicate their approval of the information contained in the communication - it does not require the signature method to verify the integrity of the communication. For example, a signature method may be applied to a communication but then transmitted as a packet of information separate to the communication.

If the signature can be shown to indicate the person's approval of the information contained in the communication then the signature will satisfy the requirements in paragraph (a). However, the choice of a particular method must be as reliable as appropriate in the circumstances. In addition, where a person must provide a signature to a Commonwealth entity the person must comply with any information technology requirements in relation to the signature method. Finally, where the signature is required to be given to a person who is not a Commonwealth entity, that person must consent to the use of that signature method.

ATTRIBUTION OF DATA MESSAGES

Since modern means of communication are used in a context of legal uncertainty, in the absence of specific legislation in most countries, it was felt appropriate for the Model Law not only to establish the general principle that the use of electronic communication should not be discriminated against, as expressed in article 5, but also to include specific illustrations of that principle. Contract formation is but one of the areas where such an illustration is useful and the legal validity of unilateral expressions of will, as well as other notices or statements that may be issued in the form of data messages, also needs to be mentioned.

Article 12 was added at a late stage in the preparation of the Model Law, in recognition of the fact that article 11 was limited to dealing with data messages that were geared to the conclusion of a contract, but that the draft Model Law did not contain specific provisions on data messages that related not to the conclusion of contracts but to the performance of contractual obligations.^¹³⁸

Article 12 thus provides that a declaration of will or other statement, as between the originator and the addressee of a data message, shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the form of a data message. Certain exceptions are provided for.

As is the case with article 11, article 12 is not to impose the use of electronic means of communication but to validate such use, subject to contrary agreement by the parties. Thus, article 12 should not be used as a basis to impose on the addressee the legal consequences of a message, if the use of a non-paper-based method for its transmission comes as a surprise to the addressee. ^¹³⁹

TIME AND PLACE OF DISPATCH AND RECEIPT OF DATA MESSAGES

The question thus arises when and where electronic contracts are deemed to be entered into The place of contracting is often crucial in determining which law governs the contract. Both the “time” and the “place” a contract comes into being may be established by the method of communicating acceptance. When an offeror has not prescribed a certain method of communication a condition of acceptance, the question arises whether he has “authorised” or “indicated” a particular method.^¹⁴⁰ The method of acceptance has important legal consequences on the time when a contract is concluded. The use of electronic communication techniques makes it difficult to ascertain the time and place of receipt of information.

The shift from paper to electronic trading and the practical steps involved in negotiating a contract have compounded the issue.^¹⁴¹ It is not uncommon for users of electronic commerce to communicate from one State to another without knowing the location of information systems through which communication is operated. In addition, the location of certain communication systems may change without either of the parties being aware of the change.^¹⁴²

.Glatt^¹⁴³ aptly illustrates the complexity of the problem with the following illustration:

This consequence is avoided by the UNCITRAL Model Law on Electronic Commerce...”

Model Law

The Model Law is thus intended to reflect the fact that the location of information systems is irrelevant and sets forth a more objective criterion, namely, the place of business of the parties.^¹⁴⁴ However, article 15 is not intended to establish a conflict-of-laws rule.

Article 15(1) of the Model Law provides that Unless otherwise agreed between the originator and the addressee, the dispatch of a data message occurs when it enters an information system outside the control of the originator or of the person who sent the data message on behalf of the originator. The time when the data message enters an information system outside the control of the originator may be the information system of an intermediary or an information system of the addressee.^¹⁴⁵ ‘Information system’ has to be interpreted broadly, as referring to any technical means and would, therefore, include the communication link between the sender and, for instance, his service provider.^¹⁴⁶

The concept of "dispatch" refers to the commencement of the electronic transmission of the data message.^¹⁴⁷ Where "dispatch" already has an established meaning, article 15 is intended to supplement national rules on dispatch and not to displace them.^¹⁴⁸ If dispatch occurs when the data message reaches an information system of the addressee, dispatch under paragraph (1) and receipt under paragraph (2) are simultaneous, except where the data message is sent to an information system of the addressee that is not the information system designated by the addressee under paragraph (2)(a). ^¹⁴⁹

It is then provided that if the addressee has designated an information system for the purpose of receiving data messages, the time of receipt of a data message is determined as follows: (i) at the time when the data message enters the designated information system; or (ii) if the data message is sent to an information system of the addressee that is not the designated information system, at the time when the data message is retrieved by the addressee.^¹⁵⁰

By "designated information system", the Model Law is intended to cover a system that has been specifically designated by a party, for instance in the case where an offer expressly specifies the address to which acceptance should be sent. The mere indication of an electronic mail or telecopy address on a letterhead or other document should not be regarded as express designation of one or more information systems.^¹⁵¹ The term “entry” is used with reference to the definition of dispatch and that of receipt of a data message. A data message enters an information system at the time when it becomes available for processing within that information system.^¹⁵²

Whether such a data message is intelligible or usable falls outside the scope of the Model Law. It is noted that the Model Law is not intended to run counter to trade usages, under which certain encoded messages are deemed to be received even before they are usable by, or intelligible for, the addressee.^¹⁵³ It was felt that the Model Law should not create a more stringent requirement than currently exists in a paper-based environment, where a message can be considered to be received even if it is never received^¹⁵⁴ or not not intelligible to the addressee or not intended to be intelligible to the addressee (e.g., where encrypted data is transmitted to a depository for the sole purpose of retention in the context of intellectual property rights protection).^¹⁵⁵

A data message should not be considered to be dispatched if it merely reached the information system of the addressee but failed to enter it.^¹⁵⁶ In particular, where the information system of the addressee does not function at all or functions improperly or, while functioning properly, cannot be entered into by the data message (e.g., in the case of a telecopier that is constantly occupied), dispatch under the Model Law does not occur. ^¹⁵⁷

Article 15(2)(b) provides that if the addressee has not designated an information system, receipt occurs when the data message enters an information system of the addressee. The provisions of article 15(2) apply, notwithstanding the fact that the place where the information system is located may be different from the place where the data message is deemed to be received.^¹⁵⁸ Glatt^¹⁵⁹ asks if no system has been designated, what constitutes an information system “of the addressee”? Does this include a mailbox stored on the service provider’s computer? He notes that an electronic mailbox is certainly an information system in the meaning of article 2(f). Considering that location is not an operative criterion of the Model Law, it is submitted that an e-mailbox can, indeed, be an information system “of the addressee”.^¹⁶⁰

Article 15(4) provides that a data message is deemed to be dispatched at the place where the originator has its place of business, and is deemed to be received at the place where the addressee has its place of business. Where the originator or the addressee has more than one place of business, the place of business is that which has the closest relationship to the underlying transaction.^¹⁶¹ Where there is no underlying transaction, the place of business is deemed to be where the principal place of business is.^¹⁶² If the originator or the addressee does not have a place of business, reference is to be made to its habitual residence.^¹⁶³ It has been noted that references to "place of business", "principal place of business" and "place of habitual residence" were adopted to bring the text in line with article 10 of the United Nations Convention on Contracts for the International Sale of Goods 1980.^¹⁶⁴

A distinction is made between the deemed place of receipt and the place actually reached by a data message at the time of its receipt under paragraph (2). This distinction is meant to be limited to computerized transmissions, excluding, for example, telex and facsimile transmissions.^¹⁶⁵ Glatt^¹⁶⁶ notes that the rationale behind these provisions is to ensure that the location of an information system does not become a crucial element where, for instance, the service provider’s computer is located in a different jurisdiction from the addressee himself. Instead, an attempt has been made to create some reasonable connection between the place of dispatch or receipt and the parties.

The rationale behind this provision is to ensure that the location of an information system is not the determinant element, and that there is some reasonable connection between the addressee and what is deemed to be the place of receipt, and that the originator can readily ascertain that place.^¹⁶⁷ The Model Law does not contain specific provisions as to how the designation of an information system should be made, or whether the addressee could make a change after such a designation. ^¹⁶⁸

The Guide notes that the effect of paragraph (4) is to introduce a distinction between the deemed place of receipt and the place actually reached by a data message at the time of its receipt under paragraph (2).^¹⁶⁹ That distinction is not to be interpreted as apportioning risks between the originator and the addressee in case of damage or loss of a data message between the time of its receipt under paragraph (2) and the time when it reached its place of receipt under paragraph (4). Paragraph (4) merely establishes an irrefutable presumption regarding a legal fact, to be used where another body of law^¹⁷⁰ require determination of the place of receipt of a data message.^¹⁷¹

To return to the example that Glatt used to illustrate the solution offered by the Model Law on the Scottish company that accepts an offer from a U.S company situated in State X. Both use a service provider for Internet access. The Scottish company has a German service provider; the U.S company’s service provider has its place of business in State Y. He argued that if the postal rule applies, the contract will be subject to German law.^¹⁷² Glatt continues:

UETA

Section 15 of the UETA provides that an electronic record is sent when it is addressed properly or otherwise directed properly to an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record; it is in a form capable of being processed by that system; and it enters an information processing system outside the control of the sender or of a person that sent the electronic record on behalf of the sender or enters a region of the information processing system designated or used by the recipient which is under the control of the recipient.^¹⁷³ An electronic record is received when the electronic record enters an information system from which the recipient is able to retrieve electronic records, in a form capable of being processed by that system, and the recipient uses or has designated that system for the purpose of receiving such records or information.^¹⁷⁴

An electronic record is deemed to be sent from where the sender has its place of business and is deemed to be received where the recipient has its place of business.^¹⁷⁵ Accordingly, where the place of sending or receipt is an issue, the relevant location should be the location of the sender or recipient and not the location of the information system.

For the purposes of this subsection: (1) if the sender or recipient has more than one place of business, the place of business is that which has the closest relationship to the underlying transaction or, if there is no underlying transaction, the principal place of business; and (2) if the sender or the recipient does not have a place of business, the place of business is the sender or the recipient’s residence.^¹⁷⁶

In addition, an electronic record is deemed to be received even if no individual is aware of its receipt.^¹⁷⁷ It is thus irrelevant whether a record is unintelligible or unusable by a recipient is a separate issue from whether that record was received. (f) Receipt of an electronic acknowledgment from an information processing system establishes that a record was received but, by itself, does not establish that the content sent corresponds to the content received.^¹⁷⁸ Section 15(g) provides that if a person is aware that an electronic record purportedly sent or purportedly received was not actually sent or received, the legal effect of the sending or receipt is determined by other applicable law. agreement.

Australian Electronic Transactions Act

If an electronic communication enters a single information system outside the control of the originator, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the dispatch of the electronic communication occurs when it enters that information system.^¹⁷⁹

For the purposes of a law of the Commonwealth, if an electronic communication enters successively 2 or more information systems outside the control of the originator, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the dispatch of the electronic communication occurs when it enters the first of those information systems.^¹⁸⁰

These provisions deal separately with situations where an electronic communication enters a single information system or multiple information systems outside of the control of the originator when it is transmitted, but the basic rule is identical in both provisions. The time when an electronic communication is dispatched is the time when the beginning of the transmission of the electronic communication occurs.

For the purposes of a law of the Commonwealth, if the addressee of an electronic communication has designated an information system for the purpose of receiving electronic communications, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the time of receipt of the electronic communication is the time when the electronic communication enters that information system.^¹⁸¹

For the purposes of a law of the Commonwealth, if the addressee of an electronic communication has not designated an information system for the purpose of receiving electronic communications, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the time of receipt of the electronic communication is the time when the electronic communication comes to the attention of the addressee.^¹⁸²

The term "comes to the attention of the addressee" does not mean that the addressee must read a communication before it is considered to be received. An addressee who actually knows, or should reasonably know in the circumstances, of the existence of the communication should be considered to have received the communication.

Place of dispatch and receipt it can truly be said that the provisions of section 14(6)(a)-(c) have been modelled on the Model Law. They were referred to above under that heading.

Canadian UECA

Section 23(1) provides that an electronic document is sent when it enters an information system outside the control of the originator or, if the originator and the addressee are in the same information system, when it becomes capable of being retrieved and processed by the addressee. An electronic document is presumed to be received by the addressee,

when it enters an information system designated or used by the addressee for the purpose of receiving documents of the type sent and it is capable of being retrieved and processed by the addressee.^¹⁸³ In the event where the addressee has not designated or does not use an information system for the purpose of receiving documents of the type sent, the the document is presumed to be received when the addressee becomes aware of the electronic document in the addressee' s information system and the electronic document is capable of being of being retrieved and processed by the addressee.^¹⁸⁴

Section 23(3) simply provides that an electronic document is deemed to be sent from the originator's place of business and is deemed to be received at the addressee's place of business. But where the originator or the addressee has more than one place of business, the place of business is that which has the closest relationship to the underlying transaction to which the electronic document relates or, if there is no underlying transaction, the principal place of business of the originator or the addressee.^¹⁸⁵ It is then provided where the originator or the addressee does not have a place of business, the references to "place of business" in subsection (3) are to be read as references to "habitual residence".^¹⁸⁶

CONCLUSION

The discussion clearly illustrates that several rules are necessary to facilitate electronic commerce. Firstly, specific recognition must be afforded to electronic messages and contracts entered into in cyberspace. Secondly, rules must be established to give recognition not only to electronic writing, but also to electronic signatures. And lastly rules need to be established to determine the time of dispatch and receipt of electronic messages and the place of dispatch and receipt of electronic documents. It has been clearly illustrated that the Model Law should be followed and adopted as it has become the international norm.

Not all solutions have been found. For example, the fact of giving legal recognition to offer and acceptance by electronic means has not clarified the question of at what possible problems that might be generated by various combinations of electronic and non-electronic means of transmission of offer and acceptance.^¹⁸⁷ However, the one message that has been emphasised in all model provisions is that legislation should be technologically neutral and enabling, rather than prescriptive.

1^. International Chamber of Commerce's "General Usage for International Digitally Ensured Commerce" adopted 6 November 1997 37 International Legal Materials 714 (1998) 716 at 718 (hereafter referred to as: "ICC op cit").

2^. see ICC loc cit.

3^. see Joseph Migga Kizza Ethical and Social Issues in the Information Age (1998) at 155.

4^. see R H Christie The Law of Contract in South Africa 2ed (1991) at 89; AJ Kerr The Principles of the Law of Contract (5^th ed) 1998 at 110; Paula Bagraim “Transacting in Cyberspace” (1998 2 (6) Juta’s Business Law 50 at 51.

5^. Christoph Glatt “Comparative Issues in the Formation of Electronic Contracts” (1998) 1 (6) International Journal of Law and Information Technology 34 at 57.

6^. see UNCITRAL Model Law on Electronic Commerce with Guide to Enactment 1996 with Additional article 5 bis as adopted in 1998 (General Assembly Resolution 51/162 of 16 December 1996) (hereafter respectively referred to as the “Model Law” and “Guide”). The Guide to Enactment was considered by the Working Group on Electronic Commerce and its final form is the substance of the policy considerations, and recommendations of that Working Group; see .

7^. see Glatt op cit at 57.

8^. see for example in the US the draft Uniform Electronic Transactions Act (hereafter referred to as “the UETA” (4 August 1999 draft)) (adopted at its Annual Conference Meeting in its One-Hundred-And-Eighth Year in Denver, Colorado (July 23-30 1999)) which is being drafted by the US National Conference of Commissioners on Uniform State Laws (UNCCUSL) to be considered in conjunction with the United States Uniform Commercial Code (UCC) has been closely modelled on articles 2(a) and (f), 4, 5, 6, 7, 8, 9, 10, 11, 14 and 15 of the Model Law. In Australia the Electronic Transactions Act 1999 received Royal Assent in December 1999 and commenced by Proclamation on 15 March 2000. The first set of has been promulgated. The Act has a two-step implementation process. Prior to 1 July 2001 the Act will only apply to laws of the Commonwealth specified in the Regulations. After that date the Act will apply to all laws of the Commonwealth unless they have been specifically excluded from the application of the Act. (see Attorney-General's Department (Security Law and Justice Branch) e-Commerce Homepage ( updated February 2000); (updated May 2000); see also the Canadian Uniform Electronic Commerce Act 1999 (available at Chapter 5 (protection of personal information) amending the Canada Evidence Act, the Statutory Instruments Act and the Statute Revision Act (assented to 13^th April 2000); see Ontario’s An Act with Respect to Electronic Information, Documents and Payments (Bill 70 2000) the short title of the Bill is E-Commerce Act 2000 – see clause 28; Singapore has adopted the Electronic Transactions Act 25 of 1998 and it is based on the Model Law as well as the Illinois Electronic Commerce Security Act and the Utah Digital Signature Act ( S 107 52^nd Leg 1^st Reg Sess (Utah 1998) - see Assafa Endeshaw “The Singapore E-Commerce ‘Code’” (1998) 3 (8) Information & Communications Technology Law 189; Andrew Phang & Daniel Seng “The Singapore Electronic Transactions Act 1998 and the Proposed Article 2b of the Uniform Commercial Code” (1999) 2 (7) International Journal of Law and Information Technology 103; see a discussion of the Singapore Electronic Transactions Act 1998 in the last-mentioned two articles and see also in Assafa Endeshaw “Singapore Gets to Grips with the Internet” (1996) 7 (2) Journal of Law and Information Science 208-222; Safinaz Mohd Hussein “The Malaysian Communications and Multimedia Act 1998¾Its Implications on the Information Technology (IT) Industry” (2000) 9 (1) Information & Communications Technology Law 79-88; In the United States many state legislatures have adopted e-commerce legislation. The draft Illinois Electronic Commerce Security Act (15 December 1997 draft) (hereafter referred to as “the Illinois Act”) has adapted articles 2(a), 4, 5, 6, 7, 8, 9, 10 and 13 of the Model Law. Massachusetts’ Electronic Records and Signatures Act (4 November 1997 draft) (hereafter referred to as “the Massachusetts Bill”) have adapted articles 5, 6, 7, 8, 9, and 10 of the Model Law.

9^. see Guide at par 2.

10^. ibid; see Peter Schlechtrien Commentary on the UN Convention on the International Sale of Goods (CIGS) (1998) at 163-165 where he distinguishes between a telex receiver being as similar to other devices that records oral declarations as opposed to the telephone, which is regarded as an instrument whereby an oral declaration is communicated.

11^. see Guide at par 3.

12^. see Guide at par 4.

13^. see Guide at par 6.

14^. see Guide at par 4.

15^. see Guide at par 5.

16^. see Guide at par 6.

17^. see John D Muller "Selected Developments in the Law of Cyberspace Payments" (1998) 54 The Business Lawyer 403 at 413.

18^. see Clive Davies “Electronic Commerce – Practical Implications of Internet Legislation” (3) 3 (1998) Communications Law 82; John Perry Barlow “Selling Wine Without Bottles. The Economy of Mind on the Global Net” in Bernt Hugenholtz (ed )The Future of Copyright in a Digital Environment (1995) at 169; see also Megan Knight “Anarchy on the Internet” (1998) May Intelligence 34-37; Lester Thurow “Needed: A New System of Intellectual Property Rights” (1997) Sept-Oct Harvar

A COMPARATIVE SURVEY OF LEGISLATIVE INITIATIVES ON SELECT ASPECTS OF ELECTRONIC COMMERCE

ABSTRACT

ACKNOWLEDGEMENTS:

EXECUTIVE SUMMARY

INTRODUCTION

INTRODUCTION TO THE UNCITRAL MODEL LAW ON ELECTRONIC COMMERCE (“THE MODEL LAW)

Objectives of the Model Law

The "functional-equivalent" approach

Default rules and mandatory law

DEFINITIONS

Model Law

Australian Electronic Transactions Act

Definitions

Electronic Communication

WRITING

Article 6 of the Model Law

ELECTRONIC SIGNATURES

UETA

Australian Electronic Transactions Act

ATTRIBUTION OF DATA MESSAGES

TIME AND PLACE OF DISPATCH AND RECEIPT OF DATA MESSAGES

Model Law

UETA

Australian Electronic Transactions Act

Canadian UECA

CONCLUSION