Larry_A_DiMatteo_-_International_Sales_Law_A_Global_Challenge-Cambridge_University_Press_2014

defined in its strategic framework for technical cooperation.5 Those action points highlight the potential of the CISG as an enabler of regional trade agreements. In addition, the action points stress the special contribution of the CISG in building a modern and efficient legislative framework in developing countries, while simultaneously catering to the specific needs of smalland medium-sized enterprises.6

The UNCITRAL Secretariat also promotes the uniform interpretation of the CISG, as mandated by Article 7(1) of the CISG. This is done, in particular, by collecting and publishing relevant abstracts for the Case Law on UNCITRAL Texts (CLOUT) collection,7 and by preparing complementary tools such as the UNCITRAL Digest of Case Law on the United Nations Convention on the International Sales of Goods.8

Finally, although certain declarations are permitted under the CISG, those declarations may introduce unjustified complexity in the CISG’s scope and application. Therefore, the UNCITRAL Secretariat encourages countries to review periodically whether the reasons for lodging such declarations are still valid and, if that is not the case, to consider their withdrawal.

II. Reconsideration of CISG Declarations

The process of reconsidering declarations under the CISG has been initiated by Nordic countries. In fact, on becoming a party to the treaty, Denmark, Finland, Norway and Sweden declared, in accordance with Article 92 CISG, that they would not be bound by Part II of the Convention (“Formation of the Contract”). Moreover, Denmark, Finland, Iceland, Norway, and Sweden declared, pursuant to Article 94 CISG, that the CISG would not apply to contracts of sale where the parties have their places of business in Denmark, Finland, Iceland, Norway, or Sweden.9 Recently, the decision was made to withdraw the Article 92 declarations and extend the Article 94 declarations to the formation of the contract so as to preserve the application of a uniform Nordic law of contracts to parties with places of business in the Nordic countries.10

Two more types of CISG declarations may undergo such review processes. First, some states may reconsider their declaration under Articles 12 and 96 CISG, requiring the contract to be in written form. This issue is particularly relevant for economies in transition. In fact, the written form declaration was originally introduced to address concerns about the correct implementation of central plans in socialist economies. Countries such as Hungary and Lithuania have now changed their economic systems

5UN doc. A/66/17, Report of the United Nations Commission on International Trade Law on its forty-fourth session (June 27–July 8, 2011), paras. 253–5.

6For more information on the strategy of the UNCITRAL secretariat in promoting the CISG, see Luca Castellani, “Promoting the Adoption of the CISG,” 13 Vindobona Journal of International Commercial Law and Arbitration 241 (2009).

7Available at http://www.uncitral.org/uncitral/en/case law.html.

8The most recent edition, published in 2012, is available at http://www.uncitral.org/uncitral/en/case law/ digests.html.

9Iceland’s declaration under article 94 CISG extends as well to the formation of contracts of sale, as Iceland did not exclude the application of Part II of the CISG.

10Denmark, Finland, and Sweden have already done so. In Norway, a public consultation has supported a similar decision, but additional work is needed, inter alia, due to the peculiar technique of adoption by incorporation of the CISG in that country. See also CISG Part II Conference: Stockholm, September 4–5, 2008 (ed. J. Kleineman) (Stockholm: Jure Bokhandel, 2009).

and have become European Union members. Because the CISG is in force in twenty-four of the twenty-eight member states of the European Union, the written form requirement may hinder cross-border trade within the European Union. This outcome is contrary to the explicit desire to enable a European common market. Those states should therefore consider withdrawing their “written form” declaration, as has been done by Estonia and, more recently, Latvia. Outside the European Union, the People’s Republic of China has also recently withdrawn its “written form” declaration, thus aligning the application of the CISG with the formal requirements for the contract of sale of goods set forth in domestic law.

Similar arguments may apply to those declarations lodged under Article 95 CISG, relating to the exclusion of the application of the CISG under its Article 1(1)(b), which allows the application of the CISG where only one party to a contract is from a CISG country and that country’s laws apply by virtue of private international law rules. This reservation was entered into by several States, including the Czech Republic, the People’s Republic of China, Singapore, Slovakia, and the United States. One reason for opting for this declaration was the desire to ensure the application of special legislation for foreign trade enacted in socialist countries, whereas reciprocity may have influenced the adoption of the declaration in non-socialist countries.11 However, such special legislation for foreign trade has been repealed, for instance, in the Czech Republic, in the People’s Republic of China, and in Slovakia. The same considerations expressed earlier on the desirability to expand the reach of the CISG should lead countries to withdraw their Article 95 declarations.12

In addition, the CISG dynamically interacts with certain other international texts that together form a “CISG system.” The CISG is complemented by the Convention on the Limitation Period in the International Sale of Goods (Limitation Convention),13 the United Nations Convention on the Use of Electronic Communications in International Contracts (Electronic Communications Convention),14 and the Uniform Rules on Contract Clauses for an Agreed Sum Due upon Failure of Performance (Uniform Rules).15 These complementary texts are therefore directly relevant to thoroughly appreciate the operation of the CISG.

11Gary F. Bell, “Why Singapore Should Withdraw Its Reservation to the United Nations Convention on Contracts for the International Sale of Goods (CISG),” 9 Singapore Year Book of International Law 55 (2005).

The following declaration lodged by Germany may also be relevant: “The Government of the Federal Republic of Germany holds the view that Parties to the Convention that have made a declaration under article 95 of the Convention are not considered Contracting States within the meaning of subparagraph (1)

(b) of article 1 of the Convention. Accordingly, there is no obligation to apply – and the Federal Republic of Germany assumes no obligation to apply – this provision when the rules of private international law lead to the application of the law of a Party that has made a declaration to the effect that it will not be bound by subparagraph (1) (b) of article 1 of the Convention. Subject to this observation the Government of the Federal Republic of Germany makes no declaration under article 95 of the Convention.”

12A recommendation in this sense was adopted by the New York State Bar Association (NYSBA) in the Final Report of its Task Force on New York Law in International Matters (June 25, 2011), p. 82. The goal of the NYSBA is to promote the use of New York law, including the CISG, and the choice of New York as place for dispute resolution.

13Concluded in 1974 and amended in 1980: United Nations, Treaty Series, vol. 1511, p. 3.

14UN Sales No. E.07.V.2 (treaty under registration; entered into force on March 1, 2013).

15UNCITRAL, Yearbook, vol. 14: 1983, part 3, II, A (p. 272).

III. Convention on the Limitation Period in the International Sale of Goods

In the area of the international sale of goods, UNCITRAL started its work in its early days by capitalizing on the extensive preparatory studies carried out in the previous decades as well as on the conventions finalized shortly before the establishment of the Commission, namely, the Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods, 1964, (ULF)16 and the Convention relating to a Uniform Law on the International Sale of Goods, 1964 (ULIS).17 The first outcome of the work of UNCITRAL was the Limitation Convention, which intended to consolidate a limited but complex area of the law of sale of goods. The Limitation Convention functionally forms a part of the CISG, but was finalized and adopted in 1974 as a separate treaty due to the uncertainty surrounding the timing of the finalization of the text of the CISG. When a sudden acceleration in the drafting process led to the adoption of the CISG in 1980, the Limitation Convention was amended by a Protocol so as to harmonize its text with that of the CISG, in particular with regard to scope of application and admissible declarations.

The Limitation Convention establishes uniform rules governing the period of time within which a party under a contract for the international sale of goods must commence legal proceedings against another party to assert a claim arising from the contract, or relating to its breach, termination, or validity. By doing so, it brings clarity and predictability to an aspect of great importance for the adjudication of the claim.

In fact, most legal systems limit or prescribe a claim from being asserted after the lapse of a specified period of time. This is due to the likelihood that, after the specified time period has passed, the evidence relating to the claim is likely to be unreliable or lost, and to the desire to protect against the uncertainty resulting from the exposure of a party to unasserted claims for an extensive period of time. However, numerous disparities exist among legal systems with respect to the conceptual basis of limitation, resulting in significant variations in the length of the limitation period and in the rules governing the claims after that period. For instance, divergent views exist on the substantive or procedural nature of provisions relating to limitation. Those differences may create difficulties in the enforcement of claims arising from international sales transactions. The Limitation Convention aims at preventing those difficulties.

The Limitation Convention applies to contracts for the sale of goods between parties whose places of business are in different states if both of those states are contracting states or, but only in its amended version, when the rules of private international law lead to the application to the contract of sale of goods of the law of a contracting state. It may also apply by virtue of the parties’ choice if so allowed under applicable law.

The Limitation Convention sets the limitation period at four years (Article 8).18 Subject to certain conditions, that period may be extended to a maximum of ten years (Article 23). Furthermore, the Limitation Convention regulates certain questions pertaining to the effect of commencing proceedings in a contracting state.

The Limitation Convention sets forth rules on the cessation and extension of the limitation period. That period ceases when the claimant commences judicial or arbitral

16United Nations, Treaty Series, vol. 834, p. 169.

17Id., p. 107.

18Article numbers refer to the consolidated text of the amended version of the Limitation Convention.

proceedings or when it asserts claims in an existing process. If the proceedings end without a binding decision on the merits, it is deemed that the limitation period continued to run during the proceedings. However, if the period has expired during the proceedings or has less than one year to run, the claimant is granted an additional year to commence new proceedings (Article 17).

Under the Limitation Convention, no claim shall be recognized or enforced in legal proceedings commenced after the expiration of the limitation period (Article 25(1)). Such expiration is not to be taken into consideration unless invoked by the parties (Article 24); however, states may lodge a declaration allowing for courts to take the expiration into account on their own initiative (Article 36). The only exception to the rule barring recognition and enforcement of the claim after the expiration of the limitation period occurs when the party raises its claim as a defense to, or set off against, a claim asserted by the other party (Article 25(2)).

Despite clear complementarities between the two treaties, the CISG has been significantly more successful in terms of adoption by states than the Limitation Convention. Several reasons may explain this: lack of resources, including parliamentary time, for international trade law reform may have worked to prioritize the adoption of the CISG over that of the Limitation Convention;19 in certain jurisdictions prescription is associated with public policy issues, and the legislative actors are therefore more hesitant to adopt supranational uniform texts in this field; and finally, at the outset the Limitation Convention was perceived as a product of the interests of socialist countries and as such was received with caution in Western and Central Europe. Unfortunately, the adoption of the Limitation Convention in capitalist countries, including the United States, did not affect this view enough to influence the pattern of its adoption.20

Nevertheless, the Limitation Convention did not disappear from the international arena. Scholars kept this treaty in due consideration in light of its remarkable technical content.21 Furthermore, states interested in creating a comprehensive legal framework for contracts for the international sale of goods are adopting the convention. In addition, the Limitation Convention is particularly relevant in regions such as North and Central America, where early adoption by the United States and Mexico are complemented with accessions by more states in the broader framework of the creation of an enabling environment for regional trade, including with a view to better implementing the CAFTA-DR agreement.22 The Limitation Convention has also been widely adopted and is regularly applied in Eastern Europe.

19Kazuaki Sono, “The Limitation Convention: the Forerunner to Establish UNCITRAL Credibility,” available at http://cisgw3.law.pace.edu/cisg/biblio/sono3.html.

20The United States ratified the Limitation Convention on May 5, 1994, i.e., twenty years after the conclusion of the treaty.

21Selected articles discussing the Limitation Convention include: Katharina Boele-Woelki, “The Limitation of Rights and Actions in the International Sale of Goods,” 4 Uniform Law Review/Revue de droit uniforme 621 (1999); Anita F. Hill, “A Comparative Study of the United Nations Convention on the Limitation Period in the International Sale of Goods and Section 2–725 of the Uniform Commercial Code,” 25

Texas International Law Journal 1 (1990). See also Reinhard Zimmermann, Comparative Foundations of a European Law of Set-off and Prescription (Cambridge and New York: Cambridge University Press, 2002). Moreover, the provisions of the Limitation Convention are commented on in Commentary on the UN Convention on the International Sale of Goods (CISG), 3rd ed. (ed. P. Schlechtriem and I. Schwenzer) (Oxford: Oxford University Press: Oxford 2010), 1215–70.

22In Canada, the Uniform Law Commission prepared in 2000 an Uniform International Sales Conventions Act meant to deal with multiple conventions relevant in the field. However, this act, available at http:// www.ulcc.ca/en/us/index.cfm?sec=1&sub=1u6, has not yet been adopted by any Canadian jurisdiction.

The limited amount of case law readily available in international databases is another factor affecting the broader use of the Limitation Convention. However, this seems related more to the difficulty of accessing existing decisions than to the lack thereof. This situation is changing as abstracts relating to the Limitation Convention are being published in the CLOUT collection.23 Such cases highlight the practical importance of the Limitation Convention and provide useful guidance on its application. Easier availability of case law is likely, on the one hand, to raise the awareness of practitioners on the Limitation Convention, thus leading to its wider application, and, on the other hand, to highlight the importance of reporting existing cases, thus paving the way to the collection of further material.

The Limitation Convention is now receiving renewed interest in light of a global trend that sees legislative reform toward a reduction of the time period necessary for limitation and, at the same time, increased difficulty in ascertaining the applicable law in case of cross-border exchanges, in part due to that legislative reform activity.24 An interesting aspect of the interaction between uniform supranational models and national law reforms relates to the current trend of adopting in national legislation two limitation periods, one “objective,” that is, running from a moment in time that can be identified in light of objective parameters (e.g., delivery of goods), and one “subjective,” that is, running from a moment in time relating to an event that only the claimant may be aware of (e.g., discovery of lack of conformity of the good). The drafters of the Limitation Convention had already extensively discussed this approach, framed as a discussion on “patent” and “latent” defects in conjunction with the beginning of the limitation period, and decided to discard the “subjective” approach relating to “latent” defects in light of the uncertainties that this might create in long-distance business relations, and of the overall length of the limitation period, deemed sufficient to cover all needs arising from purely commercial transactions.25 The matter is relevant to Article 39(2) CISG.

IV. Uniform Rules on Contract Clauses for an Agreed Sum Due upon Failure of Performance

After the conclusion of the CISG, work on sale of goods continued for some time, leading to the preparation of the Uniform Rules on Contract Clauses for an Agreed Sum Due

23CLOUT contains cases applying the Limitation Convention from Croatia, Cuba, Hungary, Montenegro, Poland, Serbia, and Ukraine. The first case from the United States discussing (though not applying) the Limitation Convention has also been published: CLOUT case no. 1186, District Court for the Northern District of Illinois, Eastern Division, No. 10 C 1174, Maxxsonics USA, Inc. v. Fengshun Peiying Electro Acoustic Company, Ltd. (March 21, 2012). More cases are emerging from other repositories and include: Foreign Trade Court attached to the Serbian Chamber of Commerce, Award No. T-13/05 (frozen plums and raspberries case), January 5, 2007, available at http://cisgw3.law.pace.edu/cases/070105sb.html. For an analysis of the case law on the Limitation Convention, see Luca G. Castellani, “An Assessment of the Convention on the Limitation Period in the International Sale of Goods through Case Law,” 58 Villanova Law Review 645 (2013).

24Yasutomo Sugiura, “Japan after Acceding to the CISG – Should We Consider Ratifying the Limitation Convention Next?,” in Towards Uniformity: The 2nd Annual MAA Schlechtriem CISG Conference (ed. I. Schwenzer and L. Spagnolo) (The Hague: Eleven/Boom Publishers, 2011), 223.

25United Nations Conference on Prescription (Limitation) in the International Sale of Goods, New York, May 20–June 14, 1974, Official Records, United Nations, New York, 1975 (UN doc. A/CONF.63/16), p. 61 (reproducing UN doc. A/CONF.63/9 and Add. 1–8), para. 72. See also the discussion under Article 10 in the travaux preparatoires´ of the Limitation Convention, available at http://www.uncitral.org/uncitral/ en/uncitral texts/sale goods/1974Convention travaux.html.

upon Failure of Performance (the Uniform Rules).26 The Uniform Rules seek to unify the treatment, particularly as to validity and application, of clauses that provide for the payment by a party of a specified sum of money as damages, or as a penalty in the event of failure of the party to perform its contractual obligations in an international commercial transaction.27

The Uniform Rules failed to obtain broad acceptance in business practice for reasons not related to their content. In fact, this complex issue had been raised at a late stage during CISG negotiations, and its discussion was therefore postponed until after the conclusion of the CISG, thus necessarily leading to the adoption of separate provisions. In addition, the working group dealing with the matter was increasingly involved in work in other fields, such as arbitration and transport law.28 Finally, this was an early example of UNCITRAL text not intended for formal treaty adoption, but to be used as a legislative model and for contractual incorporation. Although such texts became more common later and are now widely accepted in the context of “soft” legal codification, it may have been more difficult at the time to fully appreciate their value.

Though their use does not seem widespread, the Uniform Rules constitute an important intellectual achievement as they suggest a viable compromise between liquidated damages clauses, which are acceptable in many jurisdictions, and penalty clauses, which may, on the contrary, find more difficulties in being recognized by courts in legal systems belonging to the civil law tradition.29 Moreover, by limiting the power of judicial intervention to cases when the sum agreed “is substantially disproportionate in relation to the loss that has been suffered,”30 the Uniform Rules anticipated, and may further support, the trend toward the mitigation of such clauses when excessive.

It seems therefore important to give the Uniform Rules due consideration when discussing codification projects in the field of contract law.31

V.UN Convention on the Use of Electronic Communications in International Contracts

The CISG is further complemented by the United Nations Convention on the Use of Electronic Communications in International Contracts, 2005.32 The Electronic Communications Convention was prepared as a contribution to clarifying the legal value of electronic communications exchanged in the context of international contracts,

26UNCITRAL, Yearbook, vol. 14: 1983, part 3, II, A (p. 272).

27On the Uniform Rules, see Alexander Komarov, “The Limitation of Contract Damages in Domestic Legal Systems and International Instruments,” in Contract Damages: Domestic and International Perspectives (ed. D. Saidov and R. Cunnington) (Oxford and Portland, OR: Hart Publishing, 2008), 245; Pascal Hachem,

Agreed Sums Payable upon Breach of an Obligation: Rethinking Penalty and Liquidated Damages Clauses

(The Hague: Eleven/Boom Publishers, 2011).

28The area of work of that working group was generically identified as “International Contract Practices”; related documents are available at http://www.uncitral.org/uncitral/en/commission/working groups/2Contract Practices.html.

29However, the Uniform Rules may find application only in presence of liability for failure to perform: Uniform Rules, Article 5.

30Uniform Rules, Article 8.

31This will be the case for the forthcoming CISG Advisory Council Opinion on “Scope of the CISG under Article 4 – Fixed Sums.”

32The Convention was adopted with United Nations General Assembly Resolution 60/21 of December 9, 2005 (A/RES/60/21).

including those falling under the regime of other international trade law treaties such as the CISG and the Limitation Convention.

The rapid diffusion of information and communication technologies is a prominent feature of globalization. In particular, the use of electronic means in the context of trade offers significant benefits in terms of speed, reliability, and effectiveness of communication. Moreover, the mobility of electronic devices is creating a borderless, permanently connected world in which traditional legal notions, including some typical of private international law, do not find easy application. In light of this, it is not surprising that the Electronic Communications Convention has attracted significant political support, academic interest, and general praise for its content.33

The Electronic Communications Convention fulfills four main purposes: (1) facilitating the use of electronic commerce in international trade, including in connection with the application of treaties concluded before the widespread use of electronic communications; (2) reinforcing the level of uniformity in the enactment of the UNCITRAL Model Law on Electronic Commerce (MLEC)34 and of the UNCITRAL Model Law on Electronic Signatures (MLES);35 (3) updating certain provisions of the MLEC and of the MLES and complementing them with new rules arising from recent practice; and

(4) providing modern and uniform core electronic commerce legislation to countries missing or having incomplete law in this area. Thus, although the convention is a piece of “hard” international law, having a treaty nature, it may also operate as a soft law instrument, in a manner akin to that of model legislation.

The overarching purpose of the Electronic Communications Convention is to facilitate the use of electronic communications in international trade. In general, this goal may be achieved through the widespread adoption of uniform legislation at the national level. However, certain issues may require additional, specific solutions. One such issue relates to the possibility of employing electronic communications in contracts falling under the scope of treaties that do not foresee the use of those communications. For instance, the CISG embraces freedom of form for the contract of sale of goods, except when a state lodges a declaration under articles 11, 12, and 96 CISG requiring the contract to be in written form. This is the only provision in the CISG that the parties to the contract

33A bibliography on UNCITRAL texts relating to electronic commerce, including the Electronic Communications Convention, is regularly compiled by the UNCITRAL Secretariat and available on the UNCITRAL website at http://www.uncitral.org/uncitral/en/publications/bibliography.html. For further substantive information, see The United Nations Convention on the Use of Electronic Communications in International Contracts: An In-depth Guide and Sourcebook (ed. A. Boss and W. Kilian) (Aalphen aan den Rijn: Kluwer Law International, 2008); Luca Castellani, “The United Nations Electronic Communications Convention: Policy Goals and Potential Benefits,” 19 Korean Journal of International Trade & Business Law 1 (2010); Kah Wei Chong and Joyce Chao Suling, “United Nations Convention on the Use of Electronic Communications in International Contracts: a New Global Standard,” 18 Singapore Academy of Law Journal 116 (2006) (available at http://www.sal.org.sg/digitallibrary/Lists/SAL%20Journal/Attachments/ 390/2006–18-SAcLJ-116-Chong.pdf); Sieg Eiselen, “The UNECIC: International Trade in the Digital Era,” 2 Potchefstroom Electronic Law Journal 1 (2007), available at http://www.puk.ac.za/opencms/export/ PUK/html/fakulteite/regte/per/issuepages/2007volume10no2/2007x2x Eiselen art.pdf; Henry D. Gabriel, “The United Nations Convention on the Use of Electronic Communications in International Contracts: An Overview and Analysis,” 11 Uniform Law Review/Revue de droit uniforme 285 (2006).

34UNCITRAL, Model Law on Electronic Commerce with Guide to Enactment, 1996, with additional article 5 bis as adopted in 1998, New York, 1999 (United Nations Publication Sales No. E.99.V.4).

35UNCITRAL, Model Law on Electronic Signatures with Guide to Enactment, 2001, New York, 2002 (United Nations Publication Sales No. E.02.V.8).

may not vary; it must therefore have mandatory application when one of the parties to the contract of sales has its place of business in a state that has lodged the declaration.36 Because this is a strict formal requirement, it is doubtful whether equivalence between electronic and written form under the CISG could be achieved through the application of domestic law on electronic communications.

Two approaches are possible to make those older treaties compatible with the use of new technologies. The first approach requires the formal amendment of the treaty, typically through a protocol, and the formal adoption of the amended text. The amending procedure would need to be repeated for each treaty both at the international and at the domestic level. Completing such procedures may require a long period of time, creating, meanwhile, a dual legal regime in the application of the concerned treaty that could lead to uncertainty and disparity of treatment. Finally, the decision to adopt a formal amendment to the text in order to ensure the use of electronic communications might be construed as denying the possibility of a liberal interpretation under the original language.37

The second approach aims at establishing general rules of functional equivalence for electronic and paper-based requirements, in line with the method adopted in UNCITRAL texts. This approach does not demand amending each treaty, but relies on the adoption of a new text complementing all other relevant international instruments with respect to electronic communications. This is the solution embraced by the Electronic Communications Convention.

Moreover, the MLEC and the MLES have been adopted in a number of jurisdictions in every region of the world, and their principles have inspired even more legislators.38 However, the nonbinding nature of those model laws gives legislators the possibility to vary their provisions at the time of their enactment. Such variations may significantly affect legal predictability in the cross-border use of electronic communications. Therefore, it was deemed desirable to reinforce the level of uniformity in electronic commerce legislation by providing a common statutory core through the adoption of the Electronic Communications Convention.39

Furthermore, the MLEC and the MLES were prepared at a time when certain technological models, such as electronic data interchange (EDI), were prevalent and others had yet to appear. Thus, on the occasion of the preparation of the Electronic Communications Convention it was deemed appropriate to review certain provisions of those model laws in light of recent technological developments and the experience in their enactment, as well as to introduce new provisions suggested by recent commercial practice. Such updated or new provisions deal with: location of parties (Article 6(4) and (5));

36A similar case could occur when the states have lodged no declaration, but the parties have agreed to exchange written communications without mentioning explicitly the admissibility of electronic means.

37UN doc. A/CN.9/485, Report of the Working Group on Arbitration on the work of its thirty-third session (Vienna, November 20–December 1, 2000), paras. 62–9. A liberal interpretation of formal requirements is not unusual, especially in common law jurisdictions.

38The status of adoption of MLEC and MLES are available on the UNCITRAL website respectively at http:// www.uncitral.org/uncitral/en/uncitral texts/electronic commerce/1996Model status.html and http:// www.uncitral.org/uncitral/en/uncitral texts/electronic commerce/2001Model status.html. However, that status information may be incomplete due to the fact that enacting jurisdictions do not always communicate the adoption of texts to the UNCITRAL Secretariat. Thus, more jurisdictions may have adopted those model laws than those listed on the website.

39Nevertheless, the parties may modify the convention’s provisions by virtue of freedom of contract.

the notion of “intention” (as opposed to “approval”) in the definition of functional equivalence for electronic signatures (Article 9(3)(a)); the principle of nonrepudiation of electronic signatures that have in fact established the actual identity and intention of the signatory (Article 9(3)(b)(ii)); rules on the determination of time and place of dispatch and receipt of electronic communications (Article 10); invitations to make offers (Article 11); contracts concluded by automated message systems (Article 12); and input errors made by physical persons when interacting with machines (Article 14).

Countries that have already enacted those model laws may wish to consider amending their domestic legislation when becoming a party to the Electronic Communications Convention in order to avoid complications arising from a dual electronic commerce regime for national and international transactions.40

Finally, another important function of the Electronic Communications Convention is to provide core legislation to countries still lacking such provisions.

The relevance of the Electronic Communications Convention is proportional to its adoption and use. During the two years in which it was open for signature, the convention received eighteen signatures.41 The Dominican Republic, Honduras, and Singapore have already become a party to the Convention, which entered into force for those states on March 1, 2013. Other States, such as Australia and Thailand, have declared their intention of adopting the treaty. In the United States42 and in Canada,43 uniform legislation is being prepared for implementation at the state level.

At the same time, a number of developing countries, such as Guatemala44 and Vietnam,45 have adopted some, or all, of the substantive provisions of the Electronic Communications Convention without formally adhering to the treaty.46 In such cases, the Electronic Communications Convention is being used as a model law rather than as an international agreement; it may therefore fulfill the third and the fourth function listed

40For instance, if the same provisions are applicable both domestically and internationally, the need to ascertain the domestic or international nature of the transaction in unclear cases becomes less compelling.

41Some European Union member states had informally indicated their interest in signing and becoming a party to the convention. However, this has not yet been possible, pending clarifications on the operation of the “disconnection clause” (Article 17(4) of the Electronic Communications Convention) in the context of intracommunity exchanges of electronic communications. The entry into force of the Electronic Communications Convention and its adoption by significant EU trading partners is likely to give decisive impulse to those discussions, thus eventually leading to a joint declaration on the distribution of competence between the European Union and its member states that is necessary to allow the participation of EU member states in the convention.

42Documents relating to the process are available on the Uniform Law Commission website at http:// www.nccusl.org/Committee.aspx?title=UN%20E-Commerce%20Convention. See also John D. Gregory, “Implementing the Electronic Communications Convention,” 18 Business Law Today 43 (2009), available at http://www.abanet.org/buslaw/blt/2009–01–02/gregory.shtml, and, on substantive issues, Henry D. Gabriel, “United Nations Convention on the Use of Electronic Communications in International Contracts and Compatibility with the American Domestic Law of Electronic Commerce,” 7 Loyola Law and Technology Annual 1 (2006–7).

43Uniform Law Conference of Canada, Proceedings of the Ninety-second Annual Meeting 35 (Halifax, Nova Scotia, 2010).

44Decree No. 47-2008, August 19, 2008, “Ley para el reconocimiento de las comunicaciones y firmas electronicas´.”

45Decree No. 57/2006/ND-CP of June 9, 2006, “Decree on Electronic Commerce.”

46A list of the jurisdictions that have enacted some or all of the substantive provisions of the Electronic Communications Convention is available at http://www.uncitral.org/uncitral/en/uncitral texts/electronic commerce/1996Model status.html (sub-footnote (e)).