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OCTOBER 3, 2001
UNIFORM INTER-AMERICAN RULES FOR ELECTRONIC DOCUMENTS AND
SIGNATURES RECITALS
The Uniform Inter-American Rules for Electronic Documents
and Signatures (the “Rules”) are meant to provide basic
enabling provisions for electronic transactions to assist
the work of the Organization of American States (OAS) in
preparing standardized commercial documentation for
international transportation (with special reference to the
1989 Inter-American Convention on Contracts for the
International Carriage of Goods by Road) and a uniform
secured transactions law. Specifically, the Report of the
Meeting of Government Experts to Prepare for the Sixth
Inter-American Specialized Conference on Private
International Law (CIDIP-VI), OAS, REG/CIDIP-VI/doc.6/00
corr.2 states that “It was also agreed that in writing the
Draft Model Law [on secured transactions], consideration
should be given to electronic commerce, message transmission
security, and electronic signatures, as well to the validity
of electronic documents.” The Rules are therefore designed
to serve as part of an integrated body of international
commercial law.
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, use and enforceability of electronic
signatures and electronic documents is a necessary
foundation of such an environment. In addition, a consistent
legal foundation, across multiple jurisdictions, facilitates
cross-border transactions. Uniform and model rules help
create and provide this needed statutory basis.
To the extent possible, the same legal rules should apply in
both the electronic and paper environments. Nothing in these
Rules therefore affects the scope or operation of any law
related to computer crime, taxation or privacy. Further,
these Rules establish functional equivalence in the
application of consumer protection laws in the paper and
electronic environments without altering the safeguards
provided by such laws.
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. In addition, these Rules
should be applied in a manner that respects the freedom of
parties to establish the basis of their commercial
relations.
CHAPTER I
GENERAL PROVISIONS
Article 1. Short Title
These Rules may be cited as the Rules for Electronic
Documents and Signatures.
Article 2. Definitions
(1) For the purposes of these Rules
(a) “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.
(b) “Business-related activities” includes all activities
involving any person related to the conduct of commerce,
whether contractual or not. The term includes, without
limitation, (i) activities involving individuals; (ii)
transactions involving the provision of goods services or
other things of value, whether or not value is received in
exchange[, and (iii) legal actions and procedures related to
the foregoing].
(c) “Certificate” means an electronic or paper document that
links a person to an electronic signature.
(d) “Certification entity” means a person who issues
certificates or provides other services related to
electronic signatures.
(e) “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,
without limitation, contracts, notices and other
instruments.
(f) “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.
(g) “Electronic” includes electrical, digital, magnetic,
optical, electromagnetic, photonic, facsimile and any other
form of related technology.
(h) “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.
(i)
“Electronic document” means a document generated, sent,
communicated, processed, received, stored or displayed by
electronic means or by means of any other non-paper
technology.
(j) “Electronic signature” means data in electronic form
attached to, or logically associated with, an electronic
document for the purpose of signing, verification, or
indicating approval of the information contained in the
document.
(k) “Information” means data, text, images, sounds, codes,
computer programs, software, databases, speech or the like.
(l) “Information system” means a system for creating,
generating, communicating, sending, receiving, storing,
displaying or otherwise processing electronic documents.
(m) “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.
(n) “Note” means—
(i)
an unconditional written undertaking to pay a fixed amount
of money signed by the person undertaking to pay, if it
(A) is payable to bearer or to the person at the time it is
issued or first comes into the person’s possession;
(B) is payable on demand or at a definite time; and
(C) 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; or
(ii) a note as defined by other applicable law.
(o) “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.
(p) “Person” means any natural person, legal entity,
governmental entity or any other entity that can be subject
to rights or obligations under law.
(q) “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.
(r) “Transferable document” means an electronic document
that
(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 that it is a transferable document.
(2) All terms defined in the Standardized Commercial
Documentation for International Transportation and the
Inter-American Model Law on Secured Transactions are
applicable hereto.
Article 3. Scope
(1) These Rules apply [in the context of business-related
activities,] to any kind of information in the form of an
electronic document and to any electronic signature.
(2) These Rules do not apply where there is a requirement to
record or store the document with a government agency and
that agency requires documents to be in written form.
(3) A transaction subject to these Rules is also subject to
other applicable substantive law.
(4) These Rules do not apply to documents and signatures to
the extent that their use is governed by
(a) legislation governing the creation, execution, amendment
or revocation of wills, codicils or testamentary trusts;
(b) legislation governing premarital agreements, marriage,
adoption, divorce or other matters of family law, with the
exception of legislation governing pecuniary rights or
distribution of income; or
(c) […].
(5) These Rules do not apply to documents and signatures
that effect the transfer of, or impose or enforce a lien
upon title to, real property. This exclusion does not
encompass, among others, documents and signatures by which
persons agree to transfer or impose or enforce a lien upon
title to real property, but which do not actually transfer
or impose or enforce a lien upon the title to real
property.
Article 4. Interpretation
These Rules shall be interpreted—
(1) to permit and encourage the continued expansion of
electronic contracting and communications through the
operation of market forces;
(2) to promote public confidence in the validity, integrity
and reliability of electronic contracting and
communications;
(3) to facilitate the ability of private parties to agree
among themselves on the appropriate rules and technologies
for their dealings with one another;
(4) with regard to their international origin and to the
need to promote uniformity in their application across the
countries in which they have been adopted;
(5) with regard to the principle of technology neutrality;
(6) with regard to the International Institute for the
Unification of Private Law (UNIDROIT) Principles of
International Commercial Contracts, unless the persons have
otherwise agreed or another law governing the underlying
transaction otherwise provides; and
(7) in light of commercial law principles and
generally-accepted commercial usage and practices.
Article 5. Party Autonomy
(1) Nothing in these Rules shall require any person to
create, generate, send, communicate, receive, store, display
or otherwise process or use an electronic document or
electronic signature.
(2) These Rules apply where persons have agreed, expressly
or by implication, to use electronic documents or 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 specify the types of electronic
documents and signatures that it is willing to use and
accept.
(4) 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 affected
persons, subject to the conditions imposed by any relevant
agreements.
(5) As between persons involved in creating, generating,
sending, communicating, receiving, storing or otherwise
processing electronic documents, and except as otherwise
expressly provided in these Rules, the provisions of these
Rules may be varied by agreement.
Article 6. Choice of Law and Forum
Subject to the terms of these Rules —
(1) An electronic document or electronic signature shall be
governed by the law chosen by the persons to govern the
underlying transaction. 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.
(2) A dispute concerning an electronic document or
electronic signature shall be litigated in the forum chosen
by the persons for litigation concerning the underlying
transaction. 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.
(3) Selection of a certain forum by persons does not
necessarily entail selection of the applicable law, nor does
selection of a particular applicable law necessarily entail
selection of the forum.
(4) This Article shall not apply if (i) the underlying
transaction is a business-to-consumer transaction, or (ii)
another law governing the underlying transaction applies a
different rule and that other law does not allow persons to
vary that rule by contract.
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) The preceding provisions apply whether the requirement
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, but 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) The preceding provisions apply 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 requirement to post, display or format a document
in a certain manner is technically impossible to meet
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. Authentication and Acknowledgment
(1) If a law requires a signature to be authenticated,
acknowledged, verified, or made under oath, the requirement
is satisfied if the following are attached to or logically
associated with the electronic signature:
(a) the electronic signature of a notary, public official or
other person duly authorized to perform those acts;
(b) a statement from the notary, public official or other
duly authorized person in which he attests to the identity
of the signatory; and
(c) all other information required to be included by
applicable law.
(2) If a law requires a document to be drafted,
authenticated, acknowledged, verified, or made under oath,
the requirement is satisfied if the following are attached
to or logically associated with the electronic document:
(a) the electronic signature of a notary, public official or
other person duly authorized to perform those acts when the
document is signed;
(b) a statement from the notary, public official or other
duly authorized person by which he certifies the identity of
the signatory and the performance of any and all obligations
imposed on the notary, public official or other duly
authorized person by the applicable law governing the legal
validity of the document; and
(c) all other information required to be included by
applicable law.
Article 11. Retention of Electronic Documents
(1) Where a law requires that certain documents be retained,
that requirement is met by retaining electronic documents,
if the following conditions are satisfied
(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
(a) the integrity of the document has been reliably
maintained 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 shown or
given, that document is capable of being displayed to the
person to whom it is to be shown or given.
(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)
(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 and all other relevant circumstances.
CHAPTER III
APPLICATION OF EVIDENTIARY REQUIREMENTS TO
ELECTRONIC DOCUMENTS AND ELECTRONIC SIGNATURES
Article 13. Admissibility and Probative Value of Electronic
Signatures
(1) In any legal proceedings, an electronic signature shall
be admissible in evidence as if it were a handwritten
signature.
(2) Electronic signatures shall be given due probative
value. In granting probative value to 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 Probative Value of Electronic
Documents
(1) In any legal proceedings, an electronic document shall
be admissible in evidence on the same basis as a document in
paper form.
(2) 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 another
law requires the document to be presented or retained in its
original form, in which case the electronic document must
fulfill the requirements of Article 12.
(3) Electronic documents shall be given due probative value.
The probative value of an electronic document shall be
granted 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, if the person has affirmatively consented to
its delivery in electronic form.
(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.
(3) [Paragraphs (1) and (2) shall not apply to a document
governed by either the Standardized Commercial Documentation
for International Transportation or the Inter-American Model
Law on Secured Transactions if the applicable law provides
specific rules governing document delivery.]
Article 17. Security Procedures.
If a change or error in an electronic document occurs in a
transmission between persons, the following rules apply
(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 changed or erroneous
document shall not be enforceable against the conforming
party unless the conforming party subsequently agrees to be
bound by it.
(2) If paragraph (1) does not apply, the change or error has
the effect provided by other law governing the electronic
document, including the law of mistake, and by 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
(a) if the addressee has designated an information system
for the purpose of receiving electronic documents, receipt
occurs
(i)
at the time when the electronic document enters the
designated information system and is capable of being
retrieved in perceptible form by the addressee; 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
comes to the attention of and is capable of being retrieved
in perceptible form 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 and is capable of
being retrieved in perceptible form by 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
(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 DOCUMENTS AND SIGNATURES IN SPECIFIC AREAS
Article 19. Formation and Validity of Contracts, Promises
and Other Declarations of Intent
(1) In the context of contract formation, unless otherwise
agreed by the persons, an offer or the acceptance of an
offer may be expressed by means of electronic documents.
(2) A person may use a contract, promise or other
declaration of intent in electronic form for any purpose for
which a contract, promise or other declaration of intent in
writing is required or permitted by law.
(3) The legal effect, validity and enforceability of a
contract, promise or other declaration of intent in
electronic form is the same for purposes of any law as that
of a contract, promise or other declaration of intent 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
(1) A contract may be formed by the interaction of
electronic agents or by the interaction of an electronic
agent and a person.
(2) The use of an electronic agent does not imply the
application of agency law.
Article 21. Apparent Authority
[Alternative 1]
(1) For purposes of these Rules, an individual or computer
program shall bind a person if the individual or computer
program possess apparent authority to do so.
(2) For purposes of this Article —
(a) “apparent authority” means the power to affect the legal
relations of a person by transactions with third persons,
purportedly as agent for that person, arising from and in
accordance with such person’s manifestations to such third
persons.
(b) Apparent authority to do an act is created as to a third
person by any act or serious omission of a person which,
reasonably interpreted, causes the third person acting in
good faith to believe that said person consents to have the
act done on his behalf by the individual or computer program
purporting to act for him. Good faith is presumed, except
where there is evidence to the contrary.
(3) Paragraph (1) shall not apply in cases where the act or
serious omission referred to in paragraph (2)(b) is the
result of fraud on the part of the individual or computer
program.
[Alternative 2]
(1) There is “apparent authority” when one person, acting on
behalf of another one without a legal, corporate or
voluntary proxy, enters into legal acts with third persons
acting in good faith, in circumstances where it can be
reasonably interpreted that there is the appearance of a
proxy as a result of acts or omissions of the person
represented. The good faith of the third persons is
presumed, except where there is evidence to the contrary.
(2) Appointed members of the corporate bodies of legal
entities and managers heading the relevant offices shall be
deemed entitled to represent such entities in the execution
through electronic means of any act or contract that is not
eminently contrary to corporate purposes. Any restrictions
or conditions included in the by-laws or decided by the
corporate bodies of such entities that require the relevant
officers or managers to act jointly shall not be enforceable
vis-à-vis third parties acting in good faith.
(3) Paragraph (1) shall not apply in cases where the act or
serious omission is the result of fraud on the part of the
individual or computer program.
Article 22. Transferable Documents
(1) 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.
(2) A system satisfies paragraph (1), 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
(a) a single authoritative copy of the transferable document
exists which is unique, identifiable, and, except as
otherwise provided in paragraphs (3), (4), and (5),
unalterable;
(b) the authoritative copy identifies the person asserting
control as
(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.
(3) For the purposes of paragraph (2), 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.
(4) 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 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.
(5) Except as otherwise agreed, an obligor under a
transferable document has the same rights and defenses as an
equivalent obligor under equivalent documents [under . . .].
(6) 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.
(7) 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 ENTITIES
Article 23. Regulation of Certification Entities
(1) Any government regulation of certification entities
shall have as its primary objective the promotion and
enhancement of competition in the provision of certificates
or other services related to electronic signatures.
(2) [Any government regulation that has the effect of
discriminating among certificates shall be void.]
Article 24. Recognition of Foreign Certificates, Electronic
Documents and Electronic Signatures
(1) In determining whether, or the extent to which, a
certificate, an electronic document, or an electronic
signature—submitted either jointly or separately—is legally
effective, no regard shall be had to the place where the
certificate, the electronic document, or the electronic
signature was issued or created, nor to the country in which
the issuer or creator had its place of business.
(2) Certificates issued by a foreign certification entity
are recognized as legally equivalent to certificates issued
by domestic certification entities if the practices of the
foreign certification entity provide a level of reliability
at least equivalent to that required of domestic
certification entities
Paragraphs (1) and (2) do not apply where the certificate,
electronic document, or electronic signature in question has
been obtained or issued in a fraudulent manner. |
