Signature-directive

1、Contracting and digital signaturesProfessor Olav TorvundNorwegian Research Centre for Computers and LawUniversity of OsloRelevant EU-documentsEuropean Parliament and Council Directive on certain legal aspects of electronic commerce in the internal market; 2000/31/EC of 8 June 2000E-commerce directiv

2、eEuropean Parliament and Council Directive on a common framework for electronic signatures; 1999/93/EC of 13 December 1999.Signature-directiveArticle 14. This Directive does not establish additional rules on private international law nor does it deal with the jurisdiction of Courts.5. This Directive

3、 shall not apply to:(a) the field of taxation;(b) questions relating to information society services covered by Directives 95/46/EC and 97/66/EC;(c) questions relating to agreements or practices governed by cartel law;(d) the following activities of information society services:- the activities of n

4、otaries or equivalent professions to the extent that they involve a direct and specific connection with the exercise of public authority,- the representation of a client and defence of his interests before the courts,- gambling activities which involve wagering a stake with monetary value in games o

5、f chance, including lotteries and betting transactions.Contracting - basic questionsSubjective criteriasAre there any general formal requirements?Are there any specific formal requirements for the kind of contract you want to enter into?If there are any formal requirements, can they be met by inform

6、ation in electronic form?Can computer records be submitted as evidence in court proceedings?If computer records are submitted as evidence, what weight will it have?Subjective CriteriasA computer will never get knowledge about anythingA computer will never be in good or bad faithDigital signaturesWha

7、t is a digital signature?Asymmetric encryption with private and public keysDigital signature is just one of many applications of the asymmetric encryption technologyUse in open and closed networksSignature and access controlKeys and certificatesWho will issue keys and certificates?Contracting - basi

8、c questionsAre there any general formal requirements?Are there any specific formal requirements for the kind of contract you want to enter into?If there are any formal requirements, can they be met by information in electronic form?Can computer records be submitted as evidence in court proceedings?I

9、f computer records are submitted as evidence, what weight will it have?What kind of formal requirements can we have?Writing why do we require it?Signature why do we require a signature?Contracts and evidence what do we need to prove?E-commerce directive art 9:1. MemberStates shall ensure that their

10、legislation allows contracts to be concluded by electronic means. Member States shall in particular ensure that the legal requirements applicable to the contractual process neither create obstacles for the use of electronic contracts nor result in such contracts being deprived of legal effect and va

11、lidity on account of their having been made by electronic means.E-commerce directive art 9:1. MemberStates shall ensure that their legislation allows contracts to be concluded by electronic means. Member States shall in particular ensure that the legal requirements applicable to the contractual proc

12、ess neither create obstacles for the use of electronic contracts nor result in such contracts being deprived of legal effect and validity on account of their having been made by electronic means.E-commerce directive art 9:1. MemberStates shall ensure that their legislation allows contracts to be con

13、cluded by electronic means. Member States shall in particular ensure that the legal requirements applicable to the contractual process neither create obstacles for the use of electronic contracts nor result in such contracts being deprived of legal effect and validity on account of their having been

14、 made by electronic means.E-commerce directive art 9:2.MemberStates may lay down that paragraph 1 shall not apply to all or certain contracts falling into one of the following categories:(a) contracts that create or transfer rights in real estate, except for rental rights;(b) contracts requiring by

15、law the involvement of courts, public authorities or professions exercising public authority; contracts of surteyship and on collateral securities furnished by persons acting for purposes outside their trade, business of profession;(d) contracts governed by family law or by the law of succession.E-c

16、ommerce directive art 9:2.MemberStates may lay down that paragraph 1 shall not apply to all or certain contracts falling into one of the following categories:(a) contracts that create or transfer rights in real estate, except for rental rights;(b) contracts requiring by law the involvement of courts

17、, public authorities or professions exercising public authority; contracts of surteyship and on collateral securities furnished by persons acting for purposes outside their trade, business of profession;(d) contracts governed by family law or by the law of succession.E-commerce directive art 9:2.Mem

18、berStates may lay down that paragraph 1 shall not apply to all or certain contracts falling into one of the following categories:(a) contracts that create or transfer rights in real estate, except for rental rights;(b) contracts requiring by law the involvement of courts, public authorities or profe

19、ssions exercising public authority; contracts of surteyship and on collateral securities furnished by persons acting for purposes outside their trade, business of profession;(d) contracts governed by family law or by the law of succession.E-commerce directive art 9:2.MemberStates may lay down that p

20、aragraph 1 shall not apply to all or certain contracts falling into one of the following categories:(a) contracts that create or transfer rights in real estate, except for rental rights;(b) contracts requiring by law the involvement of courts, public authorities or professions exercising public auth

21、ority; contracts of surteyship and on collateral securities furnished by persons acting for purposes outside their trade, business of profession;(d) contracts governed by family law or by the law of succession.E-commerce directive art 9 (2) bAll contracts requiring notary certification can be exempt

22、ed by national lawThere are no limitations in the directive to which contracts where notary certification may be requiredE-commerce directive art 9:2.MemberStates may lay down that paragraph 1 shall not apply to all or certain contracts falling into one of the following categories:(a) contracts that

23、 create or transfer rights in real estate, except for rental rights;(b) contracts requiring by law the involvement of courts, public authorities or professions exercising public authority; contracts of surteyship and on collateral securities furnished by persons acting for purposes outside their tra

24、de, business of profession;(d) contracts governed by family law or by the law of succession.E-commerce directive art 9:2.MemberStates may lay down that paragraph 1 shall not apply to all or certain contracts falling into one of the following categories:(a) contracts that create or transfer rights in

25、 real estate, except for rental rights;(b) contracts requiring by law the involvement of courts, public authorities or professions exercising public authority; contracts of surteyship and on collateral securities furnished by persons acting for purposes outside their trade, business of profession;(d

26、) contracts governed by family law or by the law of succession.E-commerce directive art 9:2.MemberStates may lay down that paragraph 1 shall not apply to all or certain contracts falling into one of the following categories:(a) contracts that create or transfer rights in real estate, except for rent

27、al rights;(b) contracts requiring by law the involvement of courts, public authorities or professions exercising public authority; contracts of surteyship and on collateral securities furnished by persons acting for purposes outside their trade, business of profession;(d) contracts governed by famil

28、y law or by the law of succession.Contracts governed by family law or by the law of succession.= The directive covers contracts in all areas, if not excempted. Signature directive, art 1 (2)It does not cover other aspects related to the conclusion and validity of contracts or other legal obligations

29、 where there are requirements as regards form prescribed by national or Community law, governing the use of documents.Recital 17:This Directive does not seek to harmonise national rules concerning contract law, particularly the formation and performance of contracts, or other formalities of a non-co

30、ntractual nature concerning signatures; for this reason the provisions concerning the legal effect of electronic signatures should be without prejudice to requirements regarding form laid down in national law with regard to the conclusion of contracts or the rules determining where a contract is con

31、cluded; Article 8. Legal recognition of electronic communications1. 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 communi

32、cations, but a partys agreement to do so may be inferredfrom the partys conduct.Contracting - basic questionsAre there any general formal requirements?Are there any specific formal requirements for the kind of contract you want to enter into?If there are any formal requirements, can they be met by i

33、nformation in electronic form?Can computer records be submitted as evidence in court proceedings?If computer records are submitted as evidence, what weight will it have?Specific formal requirementsRequirement for specific documents?Share certificatesRequirement for a transaction to be in writingReal

34、 estateE-commerce directive art 9:2.MemberStates may lay down that paragraph 1 shall not apply to all or certain contracts falling into one of the following categories:(a) contracts that create or transfer rights in real estate, except for rental rights;(b) contracts requiring by law the involvement

35、 of courts, public authorities or professions exercising public authority; contracts of surteyship and on collateral securities furnished by persons acting for purposes outside their trade, business of profession;(d) contracts governed by family law or by the law of succession.Specific formal requir

36、ementsRequirement for specific documents?Share certificatesRequirement for a transaction to be in writingReal estateConsumer contractsConsumer Contracts EU double speakConsumer protection: Information and contracts in writingE-commerce: Electronic contracts shall be acceptedSpecific formal requireme

37、ntsRequirement for specific documents?Share certificatesRequirement for a transaction to be in writingReal estateConsumer contractsJurisdictionArbitrationRequirement for a signatureRequirement for a decision to be made in a meetingGeneral assemblySecondary formal requirementsProcedures takes paper d

38、ocuments for granted, and are based on the existence of such documentsInsurance?Finance?Custom?Transport?Accounting?Formal requirements in contractsThe conservative business and their advisors are often the main obstacles.Contracting - basic questionsAre there any general formal requirements?Are the

39、re any specific formal requirements for the kind of contract you want to enter into?If there are any formal requirements, can they be met by information in electronic form?Can computer records be submitted as evidence in court proceedings?If computer records are submitted as evidence, what weight wi

40、ll it have?Article 9. Form requirements2. 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 usabl

41、e for subsequent reference.Computer records = writing?A matter of interpreting the provisions requiring a transaction to be in writingNorwegian Financial Services Act art 8Computer record - in letters = writingTwo approachesBroad, sweeping statement:Whenever there is a requirement for something to b

42、e in writing, it will be met by electronic communication, unless excepted, given durable mediumcan be consulted for future referenceOpt out apporachSector by sector approachReview and amendment of all legislationOpt in approach3. Where the law requires that a communication or a contract should be si

43、gned 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 partys intention in respect of the information contained in the electronic communication;And

44、(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

45、(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 i

46、f:(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 cap

47、able of being displayed to the person to whom it is to be made available.The effect of a formal requirementPrerequisite for a binding transaction?Termination of some contractsArbitration clausesJurisdiction clausesProcedural advantagesPrerequisite for certain legal effectsNegotiable instrumentsPresc

48、ription of procedures without any legal effectsContracting - basic questionsAre there any general formal requirements?Are there any specific formal requirements for the kind of contract you want to enter into?If there are any formal requirements, can they be met by information in electronic form?Can

49、 computer records be submitted as evidence in court proceedings?If computer records are submitted as evidence, what weight will it have?Evidential weightCan we trust the information produced by a computer?A matter of security in the systemAuthenticationIntegrityNon-repudiationDigital Signatures is o

50、ne method for improving securityArticle 10Information to be provided1. In addition to other information requirements established by Community law, Member States shall ensure, except when otherwise agreed by parties who are not consumers, that at least the following information is given by the servic

51、e provider clearly, comprehensibly and unambiguously and prior to the order being placed by the recipient of the service:(a) the different technical steps to follow to conclude the contract;(b) whether or not the concluded contract will be filed by the service provider and whether it will be accessi

52、ble;(c) the technical means for identifying and correcting input errors prior to the placing of the order;(d) the languages offered for the conclusion of the contract.2. Member States shall ensure that, except when otherwise agreed by parties who are not consumers, the service provider indicates any

53、 relevant codes of conduct to which he subscribes and information on how those codes can be consulted electronically.3. Contract terms and general conditions provided to the recipient must be made available in a way that allows him to store and reproduce them.4. Paragraphs 1 and 2 shall not apply to

54、 contracts concluded exclusively by exchange of electronic mail or by equivalent individual communications.Article 10Information to be provided1. In addition to other information requirements established by Community law, Member States shall ensure, except when otherwise agreed by parties who are no

55、t consumers, that at least the following information is given by the service provider clearly, comprehensibly and unambiguously and prior to the order being placed by the recipient of the service:(a) the different technical steps to follow to conclude the contract;(b) whether or not the concluded co

56、ntract will be filed by the service provider and whether it will be accessible;(c) the technical means for identifying and correcting input errors prior to the placing of the order;(d) the languages offered for the conclusion of the contract.2. Member States shall ensure that, except when otherwise

57、agreed by parties who are not consumers, the service provider indicates any relevant codes of conduct to which he subscribes and information on how those codes can be consulted electronically.3. Contract terms and general conditions provided to the recipient must be made available in a way that allo

58、ws him to store and reproduce them.4. Paragraphs 1 and 2 shall not apply to contracts concluded exclusively by exchange of electronic mail or by equivalent individual communications.Article 11Placing of the order1. Member States shall ensure, except when otherwise agreed by parties who are not consu

59、mers, that in cases where the recipient of the service places his order through technological means, the following principles apply:- the service provider has to acknowledge the receipt of the recipients order without undue delay and by electronic means,- the order and the acknowledgement of receipt

60、 are deemed to be received when the parties to whom they are addressed are able to access them.2. Member States shall ensure that, except when otherwise agreed by parties who are not consumers, the service provider makes available to the recipient of the service appropriate, effective and accessible