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   Electronic Communications in International Contracts  

United Nations Convention

on the Use of Electronic Communications in International Contracts

UNITED NATIONS

New York, 2007

UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW

UNITED NATIONS PUBLICATION

Sales No. E.07.V.2

ISBN 978-92-1-133756-3

 

The States Parties to this Convention,

Reaffirming their belief that international trade on the basis of equality and mutual benefit is an important element in promoting friendly relations

among States,

Noting that the increased use of electronic communications improves the efficiency of commercial activities, enhances trade connections and

allows new access opportunities for previously remote parties and markets,

thus playing a fundamental role in promoting trade and economic development, both domestically and internationally,

Considering that problems created by uncertainty as to the legal value of the use of electronic communications in international contracts constitute

an obstacle to international trade,

Convinced that the adoption of uniform rules to remove obstacles to the use of electronic communications in international contracts, including

obstacles that might result from the operation of existing international trade law instruments, would enhance legal certainty and commercial predictability

for international contracts and help States gain access to modern trade routes,

Being of the opinion that uniform rules should respect the freedom of parties to choose appropriate media and technologies, taking account of the

principles of technological neutrality and functional equivalence, to the extent that the means chosen by the parties comply with the purpose of

the relevant rules of law,

Desiring to provide a common solution to remove legal obstacles to the use of electronic communications in a manner acceptable to States with

different legal, social and economic systems,

Have agreed as follows:

 

CHAPTER I. SPHERE OF APPLICATION

Article 1. Scope of application

1. This Convention applies to the use of electronic communications in connection with the formation or performance of a contract between

parties whose places of business are in different States.

2. The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from

the contract or from any dealings between the parties or from information disclosed by the parties at any time before or at the conclusion of the

contract.

3. Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration

in determining the application of this Convention.

 

Article 2. Exclusions

1. This Convention does not apply to electronic communications relating to any of the following:

(a) Contracts concluded for personal, family or household purposes;

(b) (i) Transactions on a regulated exchange; (ii) foreign exchange transactions; (iii) inter-bank payment systems, inter-bank payment agreements

or clearance and settlement systems relating to securities or other financial assets or instruments; (iv) the transfer of security rights in sale,

loan or holding of or agreement to repurchase securities or other financial assets or instruments held with an intermediary.

2. This Convention does not apply to bills of exchange, promissory notes, consignment notes, bills of lading, warehouse receipts or any transferable

document or instrument that entitles the bearer or beneficiary to claim the delivery of goods or the payment of a sum of money.

 

Article 3. Party autonomy

The parties may exclude the application of this Convention or derogate from or vary the effect of any of its provisions.

 

CHAPTER II. GENERAL PROVISIONS

Article 4. Definitions

For the purposes of this Convention:

(a) “Communication” means any statement, declaration, demand, notice or request, including an offer and the acceptance of an offer, that the

parties are required to make or choose to make in connection with the formation or performance of a contract;

(b) “Electronic communication” means any communication that the parties make by means of data messages;

(c) “Data message” means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not

limited to, electronic data interchange, electronic mail, telegram, telex or telecopy;

(d) “Originator” of an electronic communication means a party by whom, or on whose behalf, the electronic communication has been sent or

generated prior to storage, if any, but it does not include a party acting as an intermediary with respect to that electronic communication;

(e) “Addressee” of an electronic communication means a party who is intended by the originator to receive the electronic communication, but does

not include a party acting as an intermediary with respect to that electronic communication;

(f) “Information system” means a system for generating, sending, receiving, storing or otherwise processing data messages;

(g) “Automated message system” means a computer program or an electronic or other automated means used to initiate an action or respond to

data messages or performances in whole or in part, without review or intervention by a natural person each time an action is initiated or a response is

generated by the system;

(h) “Place of business” means any place where a party maintains a non-transitory establishment to pursue an economic activity other than the

temporary provision of goods or services out of a specific location.

 

Article 5. Interpretation

1. In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application

and the observance of good faith in international trade.

2. Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the

general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private

international law.

 

Article 6. Location of the parties

1. For the purposes of this Convention, a party’s place of business is presumed to be the location indicated by that party, unless another party

demonstrates that the party making the indication does not have a place of business at that location.

2. If a party has not indicated a place of business and has more than  one place of business, then the place of business for the purposes of this

Convention is that which has the closest relationship to the relevant contract, having regard to the circumstances known to or contemplated by the

parties at any time before or at the conclusion of the contract.

3. If a natural person does not have a place of business, reference is to be made to the person’s habitual residence.

4. A location is not a place of business merely because that is:

(a) where equipment and technology supporting an information system used by a party in connection with the formation of a contract are located; or

(b) where the information system may be accessed by other parties.

5. The sole fact that a party makes use of a domain name or electronic mail address connected to a specific country does not create a

presumption that its place of business is located in that country.

 

Article 7. Information requirements

Nothing in this Convention affects the application of any rule of law that may require the parties to disclose their identities, places of business

or other information, or relieves a party from the legal consequences of making inaccurate, incomplete or false statements in that regard.

 

CHAPTER III. USE OF ELECTRONIC COMMUNICATIONS

IN INTERNATIONAL CONTRACTS

Article 8. Legal recognition of electronic communications

1. A communication or a contract shall not be denied validity or enforceability on the sole ground that it is in the form of an electronic communication.

2. Nothing in this Convention requires a party to use or accept electronic communications, but a party’s agreement to do so may be inferred

from the party’s conduct.

 

Article 9. Form requirements

1. Nothing in this Convention requires a communication or a contract to be made or evidenced in any particular form.

2. Where the law requires that a communication or a contract should be in writing, or provides consequences for the absence of a writing, that

requirement is met by an electronic communication if the information contained therein is accessible so as to be usable for subsequent reference.

3. Where the law requires that a communication or a contract should be signed by a party, or provides consequences for the absence of a signature,

that requirement is met in relation to an electronic communication if:

(a) A method is used to identify the party and to indicate that party’s intention in respect of the information contained in the electronic communication;

and

(b) The method used is either:

(i) As reliable as appropriate for the purpose for which the electronic communication was generated or communicated,

in the light of all the circumstances, including any relevant agreement; or

(ii) Proven in fact to have fulfilled the functions described in subparagraph (a) above, by itself or together with further

evidence.

4. Where the law requires that a communication or a contract should be made available or retained in its original form, or provides consequences

for the absence of an original, that requirement is met in relation to an electronic communication if:

(a) There exists a reliable assurance as to the integrity of the information it contains from the time when it was first generated in its final form,

as an electronic communication or otherwise; and

(b) Where it is required that the information it contains be made available, that information is capable of being displayed to the person to whom

it is to be made available.

5. For the purposes of paragraph 4 (a):

(a) The criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from the addition of any

endorsement and any change that arises in the normal course of communication, storage and display; and

(b) The standard of reliability required shall be assessed in the light of the purpose for which the information was generated and in the light of

all the relevant circumstances.

 

Article 10. Time and place of dispatch and

receipt of electronic communications

1. The time of dispatch of an electronic communication is the time when it leaves an information system under the control of the originator or

of the party who sent it on behalf of the originator or, if the electronic communication has not left an information system under the control of the

originator or of the party who sent it on behalf of the originator, the time when the electronic communication is received.

2. The time of receipt of an electronic communication is the time when it becomes capable of being retrieved by the addressee at an electronic

address designated by the addressee. The time of receipt of an electronic communication at another electronic address of the addressee is the time

when it becomes capable of being retrieved by the addressee at that address and the addressee becomes aware that the electronic communication has

been sent to that address. An electronic communication is presumed to be capable of being retrieved by the addressee when it reaches the addressee’s

electronic address.

3. An electronic communication 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, as determined in accordance with article 6.

4. Paragraph 2 of this article applies notwithstanding that the place where the information system supporting an electronic address is located

may be different from the place where the electronic communication is deemed to be received under paragraph 3 of this article.

 

Article 11. Invitations to make offers

A proposal to conclude a contract made through one or more electronic communications which is not addressed to one or more specific parties, but

is generally accessible to parties making use of information systems, including proposals that make use of interactive applications for the placement of

orders through such information systems, is to be considered as an invitationto make offers, unless it clearly indicates the intention of the party

making the proposal to be bound in case of acceptance.

 

Article 12. Use of automated message systems

for contract formation

A contract formed by the interaction of an automated message system and a natural person, or by the interaction of automated message systems,

shall not be denied validity or enforceability on the sole ground that non atural person reviewed or intervened in each of the individual actions

carried out by the automated message systems or the resulting contract.  

 

Article 13. Availability of contract terms

Nothing in this Convention affects the application of any rule of law that may require a party that negotiates some or all of the terms of a contract

through the exchange of electronic communications to make available to the other party those electronic communications which contain the contractual

terms in a particular manner, or relieves a party from the legal consequences of its failure to do so.

 

Article 14. Error in electronic communications

1. Where a natural person makes an input error in an electronic communication exchanged with the automated message system of another party

and the automated message system does not provide the person with an  opportunity to correct the error, that person, or the party on whose behalf

that person was acting, has the right to withdraw the portion of the electronic communication in which the input error was made if:

(a) The person, or the party on whose behalf that person was acting, notifies the other party of the error as soon as possible after having learned

of the error and indicates that he or she made an error in the electronic communication;  and

(b) The person, or the party on whose behalf that person was acting, has not used or received any material benefit or value from the goods or

services, if any, received from the other party.

2. Nothing in this article affects the application of any rule of law that may govern the consequences of any error other than as provided for

in paragraph 1.

 

CHAPTER IV. FINAL PROVISIONS

Article 15. Depositary

The Secretary-General of the United Nations is hereby designated as

the depositary for this Convention.

 

Article 16. Signature, ratification, acceptance or approval

1. This Convention is open for signature by all States at United

Nations Headquarters in New York from 16 January 2006 to 16 January

2008.

2. This Convention is subject to ratification, acceptance or approval

by the signatory States.

3. This Convention is open for accession by all States that are not

signatory States as from the date it is open for signature.

4. Instruments of ratification, acceptance, approval and accession are

to be deposited with the Secretary-General of the United Nations.

Article 17. Participation by regional economic

integration organizations

1. A regional economic integration organization that is constituted by

sovereign States and has competence over certain matters governed by this

Convention may similarly sign, ratify, accept, approve or accede to this

Convention. The regional economic integration organization shall in that

case have the rights and obligations of a Contracting State, to the extent that

that organization has competence over matters governed by this Convention.

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Where the number of Contracting States is relevant in this Convention, the

regional economic integration organization shall not count as a Contracting

State in addition to its member States that are Contracting States.

2. The regional economic integration organization shall, at the time

of signature, ratification, acceptance, approval or accession, make a declaration

to the depositary specifying the matters governed by this Convention

in respect of which competence has been transferred to that organization by

its member States. The regional economic integration organization shall

promptly notify the depositary of any changes to the distribution of competence,

including new transfers of competence, specified in the declaration

under this paragraph.

3. Any reference to a “Contracting State” or “Contracting States” in

this Convention applies equally to a regional economic integration organization

where the context so requires.

4. This Convention shall not prevail over any conflicting rules of any

regional economic integration organization as applicable to parties whose

respective places of business are located in States members of any such

organization, as set out by declaration made in accordance with article 21.

Article 18. Effect in domestic territorial units

1. If a Contracting State has two or more territorial units in which

different systems of law are applicable in relation to the matters dealt with

in this Convention, it may, at the time of signature, ratification, acceptance,

approval or accession, declare that this Convention is to extend to all its

territorial units or only to one or more of them, and may amend its declaration

by submitting another declaration at any time.

2. These declarations are to be notified to the depositary and are to

state expressly the territorial units to which the Convention extends.

3. If, by virtue of a declaration under this article, this Convention

extends to one or more but not all of the territorial units of a Contracting

State, and if the place of business of a party is located in that State, this

place of business, for the purposes of this Convention, is considered not to

be in a Contracting State, unless it is in a territorial unit to which the

Convention extends.

4. If a Contracting State makes no declaration under paragraph 1 of

this article, the Convention is to extend to all territorial units of that State.

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Article 19. Declarations on the scope of application

1. Any Contracting State may declare, in accordance with article 21,

that it will apply this Convention only:

(a) When the States referred to in article 1, paragraph 1, are

Contracting States to this Convention; or

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

2. Any Contracting State may exclude from the scope of application

of this Convention the matters it specifies in a declaration made in

accordance with article 21.

Article 20. Communications exchanged under

other international conventions

1. The provisions of this Convention apply to the use of electronic

communications in connection with the formation or performance of a

contract to which any of the following international conventions, to which

a Contracting State to this Convention is or may become a Contracting State,

apply:

Convention on the Recognition and Enforcement of Foreign Arbitral

Awards (New York, 10 June 1958);

Convention on the Limitation Period in the International Sale of Goods

(New York, 14 June 1974) and Protocol thereto (Vienna, 11 April

1980);

United Nations Convention on Contracts for the International Sale of

Goods (Vienna, 11 April 1980);

United Nations Convention on the Liability of Operators of Transport

Terminals in International Trade (Vienna, 19 April 1991);

United Nations Convention on Independent Guarantees and Stand-by

Letters of Credit (New York, 11 December 1995);

United Nations Convention on the Assignment of Receivables in

International Trade (New York, 12 December 2001).

2. The provisions of this Convention apply further to electronic communications

in connection with the formation or performance of a contract

to which another international convention, treaty or agreement not specifically

referred to in paragraph 1 of this article, and to which a Contracting

State to this Convention is or may become a Contracting State, applies,

unless the State has declared, in accordance with article 21, that it will not

be bound by this paragraph.

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3. A State that makes a declaration pursuant to paragraph 2 of this

article may also declare that it will nevertheless apply the provisions of this

Convention to the use of electronic communications in connection with the

formation or performance of any contract to which a specified international

convention, treaty or agreement applies to which the State is or may become

a Contracting State.

4. Any State may declare that it will not apply the provisions of this

Convention to the use of electronic communications in connection with the

formation or performance of a contract to which any international convention,

treaty or agreement specified in that State’s declaration, to which the

State is or may become a Contracting State, applies, including any of the

conventions referred to in paragraph 1 of this article, even if such State has

not excluded the application of paragraph 2 of this article by a declaration

made in accordance with article 21.

Article 21. Procedure and effects of declarations

1. Declarations under article 17, paragraph 4, article 19, paragraphs 1

and 2, and article 20, paragraphs 2, 3 and 4, may be made at any time.

Declarations made at the time of signature are subject to confirmation upon

ratification, acceptance or approval.

2. Declarations and their confirmations are to be in writing and to be

formally notified to the depositary.

3. A declaration takes effect simultaneously with the entry into force

of this Convention in respect of the State concerned. However, a declaration

of which the depositary receives formal notification after such entry

into force takes effect on the first day of the month following the expiration

of six months after the date of its receipt by the depositary.

4. Any State that makes a declaration under this Convention may

modify or withdraw it at any time by a formal notification in writing

addressed to the depositary. The modification or withdrawal is to take effect

on the first day of the month following the expiration of six months after

the date of the receipt of the notification by the depositary.

Article 22. Reservations

No reservations may be made under this Convention.

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Article 23. Entry into force

1. This Convention enters into force on the first day of the month

following the expiration of six months after the date of deposit of the third

instrument of ratification, acceptance, approval or accession.

2. When a State ratifies, accepts, approves or accedes to this

Convention after the deposit of the third instrument of ratification, acceptance,

approval or accession, this Convention enters into force in respect of

that State on the first day of the month following the expiration of six months

after the date of the deposit of its instrument of ratification, acceptance,

approval or accession.

Article 24. Time of application

This Convention and any declaration apply only to electronic communications

that are made after the date when the Convention or the declaration

enters into force or takes effect in respect of each Contracting State.

Article 25. Denunciations

1. A Contracting State may denounce this Convention by a formal

notification in writing addressed to the depositary.

2. The denunciation takes effect on the first day of the month following

the expiration of twelve months after the notification is received by the

depositary. Where a longer period for the denunciation to take effect is specified

in the notification, the denunciation takes effect upon the expiration of

such longer period after the notification is received by the depositary.

DONE at New York this twenty-third day of November two thousand

and five, in a single original, of which the Arabic, Chinese, English, French,

Russian and Spanish texts are equally authentic.

IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly

authorized by their respective Governments, have signed this Convention.