DRAFT MAY 10, 2000

UNIFORM INTER-AMERICAN ELECTRONIC COMMERCE LAW

RECITALS

The growth of electronic commerce is of paramount importance to the economies of the countries of the Americas. Therefore it is essential to create an environment conducive to the conduct of electronic commerce. Legal certainty regarding the validity and use of electronic signatures and electronic documents is a necessary foundation of such an environment.

To the extent possible, the same legal rules should apply in both the electronic and paper environments. Nothing in this Law therefore affects the scope or operation of any law related to computer crime, taxation or privacy.

The cross-border nature of electronic commerce requires the creation of an international consensus regarding the legal rules governing electronic signatures and electronic documents. Such a consensus is promoted by the adoption of uniform and model laws.

This Law creates an international legal framework for the validity and use of electronic signatures and electronic documents. It is designed to accompany and complement the Standardized Commercial Documentation for International Transportation (with special reference to the1989 Inter-American Convention on Contracts for the International Carriage of Goods by Road) and the Inter-American Model Law on Secured Transactions as part of an integrated body of international commercial law. This Law should be applied in a manner that respects the freedom of parties to establish the basis of their commercial relations.

Many different technologies can be used to create electronic signatures and electronic documents. Parties should be free to choose the technology that best suits their needs. The provisions contained herein should not be applied or interpreted so as to exclude, restrict or deprive of legal effect any method of creating an electronic document or an electronic signature that satisfies the requirements established hereunder, or that otherwise meets the requirements of the applicable law.

CHAPTER I. GENERAL PROVISIONS

Article 1. Short Title

This Law may be cited as the Electronic Commerce Law.

Article 2. Definitions

For the purposes of this Law ¾
(1) "Accreditation" means an accreditation under Article 21.
(2) "Addressee" of an electronic document means a person who is intended by the originator to receive the electronic document, but does not include a person acting as an intermediary with respect to that electronic document;
(3) "Certificate" means an electronic document that links a person to an electronic signature.
(4) "Certification authority" means a person who issues certificates or provides other services related to electronic signatures.
(5) "Commercial activities" includes all activities related to the conduct of commerce, whether contractual or not, involving any type of person.
(6) "Document" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form, including in the form of a contract, notice or other instrument.
(7) "Electronic" includes electrical, digital, magnetic, optical, electromagnetic, biometric, photonic and any other form of related technology.
(8) "Electronic agent" means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic documents or performances in whole or in part, without contemporaneous review or action by a person.
(9) "Electronic document" means a document generated, sent, communicated, processed, received stored or displayed by electronic means.
(10) "Electronic signature" means data in electronic form attached to, or logically associated with, an electronic document for the purpose of signing or authentication.
(11) "Information" means data, text, images, sounds, codes, computer programs, software, databases, speech or the like.
(12) "Information system" means a system for generating, communicating, sending, receiving, storing, displaying or otherwise processing electronic documents.
(13) "Intermediary", with respect to a particular electronic document, means a person who, on behalf of another person, sends, receives or stores that electronic document or provides other services with respect to that electronic document;
(14) "Originator" of an electronic document means a person by whom, or on whose behalf, the electronic document purports to have been sent or generated prior to storage, if any, but does not include a person acting as an intermediary with respect to that electronic document;
(15) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental agency, public corporation, or any other legal or commercial entity.
(16) "Security procedure" means a procedure employed for the purpose of verifying that an electronic signature, document, or performance is that of a specific person or for detecting changes or errors in an electronic document, including any procedure that requires the use of algorithms or other codes, identifying words or numbers, encryption, or callback or other acknowledgment procedures.

Article 3. Scope

(1) This Law applies to any kind of information in the form of an electronic document and to any electronic signature in the context of commercial activities.
(2) This Law does not apply to documents and signatures to the extent that their use is governed by ¾
(a) a law governing the creation, execution, amendment, variation or revocation of wills, codicils or testamentary trusts;
(b) a law governing premarital agreements, marriage, adoption, divorce or other matters of family law;
(c) a law governing agreements effecting the transfer of, or imposing a lien upon title to, real property ;
(d) a law governing the making of an affidavit or sworn declaration;
(e) the rules, practices or procedures of a court or tribunal; or
(f) [...].
(3) This Law applies to an electronic document or electronic signature otherwise excluded from the application of this Law under subsection (2) to the extent that its use is governed by a law other than those specified in subsection (2).
(4) This Law does not override any law providing substantive protection for the rights of consumers.

Article 4. Interpretation

(1) This Law shall be interpreted to facilitate commerce in electronic environments consistent with other applicable law.
(2) In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application across the countries in which it has been adopted.

Article 5. Party Autonomy

(1) Nothing in this Law shall require any person to create, generate, send, communicate, receive, store or otherwise process or use an electronic document or electronic signature.
(2) This Law applies where persons have agreed, expressly or by implication, to use electronic documents and electronic signatures. Whether persons have so agreed is to be determined from the context and surrounding circumstances, including the conduct of the persons.
(3) A person that has agreed to use electronic documents and electronic signatures may withdraw its agreement to their use, provided that prior notice is given to the other.
(4) As between persons involved in creating, generating, sending, communicating, receiving, storing or otherwise processing electronic documents, and except as otherwise expressly provided herein, the provisions of this Law may be varied by agreement.

Article 6. Choice of Law

(1) An electronic document or electronic signature shall be governed by the law chosen by the persons using it. Persons' agreement on this choice must be express or, in the event that there is no express agreement, must be evident from their behavior and from the clauses of any contract, considered as a whole. Said selection may relate to the entire electronic document or to a part of same.
(2) Selection of a certain forum by persons does not necessarily entail selection of the applicable law.

CHAPTER II. APPLICATION OF LEGAL REQUIREMENTS TO
ELECTRONIC DOCUMENTS AND ELECTRONIC SIGNATURES

Article 7. Legal Recognition of Electronic Signatures

(1) An electronic signature shall be given the same legal effect, validity and enforceability as a handwritten signature.
(2) A person may use an electronic signature for any purpose for which a handwritten signature is required or permitted by law.
(3) Paragraph (2) applies whether the requirement therein is in the form of an obligation or whether a law simply provides consequences for the absence of a signature.

Article 8. Legal Recognition of Electronic Documents

(1) An electronic document shall be given the same legal effect, validity and enforceability as a document in paper form.
(2) A person may use an electronic document for any purpose for which a document in paper form is required or permitted by law, provided that where a law requires a document to be in paper form, that requirement is met by an electronic document if the information contained therein is accessible to the person to whom the electronic document is directed so as to be usable for subsequent reference.
(3) Paragraph (3) applies whether the requirement therein is in the form of an obligation or whether a law simply provides consequences for the document not being in paper form.

Article 9. Display and Format of Electronic Documents

(1) If a law requires a document to be posted, displayed or formatted in a certain manner, an electronic document, to satisfy the law, must be posted, displayed or formatted in the manner specified in the law, subject to paragraph (2).
(2) If a literal requirement of a law referenced in paragraph (1) cannot be met electronically but its purpose can be met electronically, then an electronic document posted, displayed or formatted in a manner that reasonably meets that purpose, taking account of the technology used, satisfies that law.

Article 10. Notarization and Acknowledgment.

If a law requires a signature or document to be notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of a notary, public official, or other person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the electronic signature or electronic document.

Article 11. Retention of Electronic Documents

(1) Where a law requires that certain documents be retained, that requirement is met by retaining electronic documents, provided that the following conditions are satisfied ¾
(a) the information contained therein is accessible so as to be usable for subsequent reference; and
(b) the electronic document is retained in the format in which it was generated, sent or received, or in a format which can be demonstrated to represent accurately the information generated, sent or received; and
(c) such information, if any, is retained as enables the identification of the origin and destination of an electronic document and the date and time when it was sent or received, if the law requires retention of such information.
(2) An obligation to retain documents in accordance with paragraph (1) does not extend to any information in an electronic document the sole purpose of which is to enable the electronic document to be sent or received.
(3) A person may satisfy the requirement referred to in paragraph (1) by using the services of any other person, provided that the conditions set forth in subparagraphs (a), (b) and (c) of paragraph (1) are met.

Article 12. Electronic Originals

(1) Where a law requires a document to be presented or retained in its original form, that requirement is met by an electronic document if ¾
(a) there exists a reliable assurance as to the integrity of the document from the time when it was first generated in its final form, as an electronic document or otherwise; and
(b) where it is required that the document be presented, that document is capable of being displayed to the person to whom it is to be presented.
(2) Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the document not being presented or retained in its original form.
(3) For the purposes of subparagraph (a) of paragraph (1) ¾
(a) the criteria for assessing integrity shall be whether the document has remained complete and unaltered, apart from the addition of any endorsement or any other changes which arise in the normal course of communication, storage and display and that do not alter the original information contained in the document; and
(b) the standard of reliability required shall be assessed in the light of the purpose for which the electronic document was generated; the technology used to generate, present and retain the electronic document; and all other relevant circumstances.

CHAPTER III. APPLICATION OF EVIDENTIARY REQUIREMENTS TO
ELECTRONIC DOCUMENTS AND ELECTRONIC SIGNATURES

Article 13. Admissibility and Evidential Weight of Electronic Signatures

(1) In any legal proceedings, an electronic signature shall be admissible in evidence on the same basis as a handwritten signature.
(2) Electronic signatures shall be given due evidential weight. In assessing the evidential weight of an electronic signature regard shall be had as to whether the method used to create the electronic signature is as reliable as was appropriate for the purpose for which the electronic signature was generated or communicated, in the light of all the circumstances, including any relevant agreement.

Article 14. Admissibility and Evidential Weight of Electronic Documents

(2) In any legal proceedings, an electronic document shall be admissible in evidence on the same basis as a document in paper form.If an electronic document is the best evidence that the person adducing it could reasonably be expected to obtain, it shall not be denied admissibility in evidence on the sole ground that it is not in its original form, unless a law requires the document to be presented or retained in its original form.
(3) Electronic documents shall be given due evidential weight. The evidential weight of an electronic document shall be assessed in light of the reliability of the manner in which the electronic document was generated, stored or communicated, the reliability of the manner in which the integrity of the electronic document was maintained, the manner in which its originator was identified, any relevant agreement, and any other relevant factor.

Article 15. Attribution of Electronic Documents and Electronic Signatures

(1) An electronic document or 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 a showing of the efficacy of any security procedure applied to determine the person to whom the electronic document or electronic signature was attributable.
(2) The effect of an electronic document or electronic signature attributed to a person under paragraph (1) is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the persons' agreement, if any, and otherwise as provided by law.

CHAPTER IV. COMMUNICATION OF ELECTRONIC DOCUMENTS

Article 16. Electronic Delivery

(1) A document required or permitted to be delivered to a person by any law may be delivered in electronic form to that person, provided the person has so agreed under Article 5(2).
(2) The effect of electronic delivery of a document is the same for the purposes of any law as that of delivery of the document in paper form.

Article 17. Effect of Change or Error.

If a change or error in an electronic document occurs in a transmission between persons, the following rules apply ¾
(1) If persons have agreed to use a security procedure to detect changes or errors and one person has conformed to the procedure, but the other person has not, and the nonconforming person would have detected the change or error had that person also conformed, the conforming person may avoid the effect of the changed or erroneous electronic document.
(2) In an transaction involving an electronic agent and an individual, the individual may avoid the effect of an electronic document that resulted from an error made by the individual in dealing with the electronic agent if the electronic agent did not provide an opportunity for the prevention or correction of the error and, at the time the individual learns of the error, the individual ¾
(a) promptly notifies the other person of the error and that the individual did not intend to be bound by the electronic document received by the other person;
(b) takes reasonable steps, including steps that conform to the other person's reasonable instructions, to return to the other person or, if instructed by the other person, to destroy the consideration received, if any, as a result of the erroneous electronic document; and
(c) has not used or received any benefit or value from the consideration, if any, received from the other person.
(3) If neither paragraph (1) nor paragraph (2) applies, the change or error has the effect provided by other law, including the law of mistake, and the persons' contract, if any.

Article 18. Time and Place of Dispatch and Receipt of Electronic Documents

(1) Unless otherwise agreed between the originator and the addressee, the dispatch of an electronic document occurs when it enters an information system outside the control of the originator or of the person who sent the electronic document on behalf of the originator.
(2) Unless otherwise agreed between the originator and the addressee, the time of receipt of an electronic document is determined as follows ¾
(a) if the addressee has designated an information system for the purpose of receiving electronic documents, receipt occurs ¾
(i) at the time when the electronic document enters the designated information system; or
(ii) if the electronic document is sent to an information system of the addressee that is not the designated information system, at the time when the electronic document is retrieved by the addressee;
(b) if the addressee has not designated an information system, receipt occurs when the electronic document enters an information system of the addressee.
(3) Paragraph (2) applies notwithstanding that the place where the information system is located may be different from the place where the electronic document is deemed to be received under paragraph (4).
(4) Unless otherwise agreed between the originator and the addressee, an electronic document 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. For the purposes of this paragraph ¾
(a) if 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 or, where there is no underlying transaction, the principal place of business;
(b) if the originator or the addressee does not have a place of business, reference is to be made to its habitual residence.

CHAPTER V. ELECTRONIC COMMERCE IN SPECIFIC AREAS

Article 19. Formation and Validity of Contracts

(1) In the context of contract formation, unless otherwise agreed by the persons, an offer and the acceptance of an offer may be expressed by means of electronic documents.
(2) A person may use a contract in electronic form for any purpose for which a contract in writing is required or permitted by law.
(3) The effect of a contract in electronic form is the same for purposes of any law as that of a contract in paper form.
(4) When the relevant electronic documents or their transfer or pledge need to be filed in an electronic registry created for such a purpose, the special rules governing such filings shall apply. Where such registries exist, the electronic filing shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the form of an electronic document.

Article 20. Electronic Agents

A contract may be formed by the interaction of electronic agents or by the interaction of an electronic agent and a person.

Article 21. Transferable Documents

(1) In this section ¾
(a) "transferable document" means an electronic document that ¾
(i) would be a document of title or a note, if the electronic document were in paper form; and
(ii) the issuer of the electronic document expressly has agreed is a transferable document.
(b) "document of title" includes a bill of lading, a dock warrant, a dock receipt, a warehouse receipt, or an order for the delivery of goods, and also any other document which in the regular course of business or financing is treated as adequately evidencing that the person in possession of it is entitled to receive, hold and dispose of the document and the goods it covers.
(c) "note" means an unconditional written undertaking to pay a fixed amount of money signed by the person undertaking to pay, if it ¾
(i) is payable to bearer or to the person at the time it is issued or first comes into the person's possession;
(ii) is payable on demand or at a definite time; and
(iii) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, other than an undertaking or power to give, maintain, or protect collateral to secure payment.
(2) A person has control of a transferable document if a system employed for evidencing the transfer of interests in the transferable document reliably establishes that person as the person to which the transferable document was issued or transferred.
(3) A system satisfies paragraph (2), and a person is deemed to have control of a transferable document, if the transferable document is created, stored, and assigned in such a manner that ¾
(a) a single authoritative copy of the transferable document exists which is unique, identifiable, and, except as otherwise provided in paragraphs (4), (5), and (6), unalterable;
(b) the authoritative copy identifies the person asserting control as ¾
(i) the person to which the transferable document was issued; or
(ii) if the authoritative copy indicates that the transferable document has been transferred, the person to which the transferable document was most recently transferred;
(c) the authoritative copy is communicated to and maintained by the person asserting control or its designated custodian;
(d) copies or revisions that add or change an identified assignee of the authoritative copy can be made only with the consent of the person asserting control;
(e) each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy that is not the authoritative copy; and
(f) any revision of the authoritative copy is readily identifiable as authorized or unauthorized.
(4) For the purposes of paragraph (3), whether a single authoritative copy exists shall be determined in the light of the purpose for which the transferable document was created and conveyed and in the light of all the circumstances, including any relevant agreement.
(5) Except as otherwise agreed, a person having control of a transferable document is the holder, [as defined in . . .], of the transferable document and has the same rights and defenses as a holder of an equivalent document [under . . .], including, if the applicable statutory requirements [under . . .] are satisfied, the rights and defenses of a holder in due course, a holder to which a negotiable document of title has been duly negotiated, or a purchaser, respectively. Delivery, possession, and indorsement are not required to obtain or exercise any of the rights under this paragraph.
(6) Except as otherwise agreed, an obligor under a transferable document has the same rights and defenses as an equivalent obligor under equivalent documents [under . . .].
(7) If requested by a person against which enforcement is sought, the person seeking to enforce the transferable document shall provide reasonable proof that the person is in control of the transferable document. Proof may include access to the authoritative copy of the transferable document and related business documents sufficient to review the terms of the transferable document and to establish the identity of the person having control of the transferable document.
(8) If a rule of law would be applicable to a transferable document if it were in paper form, that rule shall not be inapplicable to the transferable document by reason of the fact that the transferable document is in electronic form.

CHAPTER VI. CERTIFICATION AUTHORITIES

Article 22. Voluntary Accreditation of Certification Authorities

(1) The provision of certificates or other services related to electronic signatures shall not be subject to prior authorization.
(2) Without prejudice to paragraph (1), the [. . .] may introduce and maintain voluntary accreditation schemes for public and private certification authorities and may designate accreditation authorities and make regulations on any other matter relating to such designation that appear to [. . .] to be necessary or desirable.

Article 23. Liability of Certification Authorities

(1) A certification authority which has issued or guaranteed an electronic signature certificate shall be liable for any damage caused to any person who reasonably relies on such certificates as regards the accuracy of all information in the certificate as of the time of issue, but only if the certification service provider has acted negligently or with willful intent with respect to the inaccurate information.
(2) A certification authority which has issued or guaranteed an electronic signature certificate is liable for damage caused to any person who reasonably relies on the certificate for failure to register revocation of the certificates, but only if the certification service has acted negligently or with willful intent with respect to the failure to register revocation.
(3) A certification authority may indicate in a certificate limits on its use. The certification authority shall not be liable for damages arising from a contrary use of a certificate which includes limits on its uses.
(4) A certification authority may indicate in a certificate a limit on the value of transactions for which the certificate can be used. The certification authority shall not be liable for damages arising from use of a certificate in a transaction which has a value in excess of the limit.

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