Go to Database Directory || Go to Bibliography
Search the entire CISG Database (case data + other data)

Reproduced with permission of Camilla B. Andersen & Ulrich G. Schroeter eds., Sharing International Commercial Law across National Boundaries: Festschrift for Albert H. Kritzer on the Occasion of his Eightieth Birthday, Wildy, Simmonds & Hill Publishing (2008) 640-654

The Parol Evidence Rule, International Electronic
Documents and the United Nations Convention on
Contracts for the International Sale of Goods (CISG)

Alberto L. Zuppi [*]

INTRODUCTION

The common law tradition's parol evidence rule provides that a written instrument intended by the contracting parties to be a complete expression of their mutual understanding cannot be challenged by past or contemporary evidence contradicting it or modifying its content, unless the will of one of the parties has been affected by a recognized vice of consent. No equivalent rule exists in the Civil law legal tradition.[1] The legal families following Roman law are acquainted with the principle of non-admittance of proof by witnesses in contracts whose value is less than a certain fixed amount of money, but nothing compared with a general prohibition to challenge the content of a written contract with other evidence. In an international commercial relation the crossing point between the common law parol evidence rule and the more flexible civil law understanding accepted by the United Nations Convention on Contracts for the International Sale of Goods (CISG) has already produced a number of cases, most of them resolved by American courts.[2]  [page 640]

On the other hand, we are contributing daily to an incessant increase in the electronic commercial interchange which will oblige scholars to revisit most of the known contractual rules. The amount of digital information being generated each day is beyond imagination. The U.S. Postal Service handles more than 700 million pieces daily and handled 213 billion pieces during the whole of 2006.[3] By contrast, it has been estimated that more than 170 billion emails are sent daily.[4] Such an amount of electronic interchange will have an impact on all aspects of commerce, but even the significance and consequences of an electronic document are not always the same for the different legal orders.[5] The questions arisen by electronic documents are of utmost importance and begin to concern the whole judicial proceeding. In the United States the federal judiciary's Case Management and Electronic Case Files (CM/ECF) system is in use in 98% of the federal courts, in 92 district courts, in the Court of International Trade, the Court of Federal Claims and the Court of Appeals for the 8th Circuit, among others tribunals, and at the end of 2007 will be fully implemented.[6] [page 641]

It is questionable whether an electronic document could fulfill the writing requirement that some legislations belonging to the Civil law tradition are obliged by conceding solemnity to certain contracts.[7] This Article will analyze the rules governing parol evidence in case of an international contract concluded through electronic documents, and specifically in light of the modern trends in international trade, as is the case of any international electronic contract which falls under the application of the CISG.

THE MEANING OF A WRITTEN DOCUMENT UNDER THE CISG

Undoubtedly, the CISG has proved to be the most successful instrument for unifying the law of international sales, having obtained the ratification of seventy States [8] which represent more than 85% of the total world trade.[9] In a treaty like the CISG, one of whose proclaimed goals has been to try to obtain uniformity between different legal traditions in relation with the contract of sale, there was no place for a rule which has lost supporters even in its own legal family.[10]

No written contract is even required for a sale according to Article 11 CISG and may be proved by any means:

‘A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.’ [page 642]

The original official comment to this article,[11] prepared by the drafting Conference, explained that many contracts for the international sale of goods were concluded through modern means of communication, not always involving a writing. A proposal presented by Canada, introducing a limitation on admissible evidence in cases where contracting parties had freely chosen to have a written contract, did not obtain the necessary support from other participants at the drafting Conference.[12] Another proposal from the Netherlands to limit this possibility to certain types of contracts was not accepted.[13]

According to Article 12 CISG, any provision of Article 11, Article 29 or Part II of the CISG that allows the execution of a contract of sale, or its modification, or termination by agreement, or any offer, acceptance, or other indication of intention to be made in any form other than in writing does not apply where a party to the contract has his place of business in a member State which has made a declaration under Article 96 CISG.[14] These articles cannot be derogated by the parties following the rule of Article 6 CISG. Accordingly, Argentina, Armenia, Belarus, Chile, Estonia, Hungary, Latvia, Lithuania, Paraguay, Russian Federation and Ukraine have declared that any provision of Article 11, Article 29 or Part II of the Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance, or other indication of intention be made in any form other than in writing does not apply where any party has his place in the country that has filed this declaration.[15] [page 643]

The absence of a requirement of form from the CISG leaves unaltered the well-accepted common law statute of frauds.[16] Consequently, when the CISG is applicable oral contracts are admissible,[17] but this admission will not apply to a contracting party having his place of business in a State which has made the declaration of Article 96 CISG.

The drafters of Article 13 CISG extended the meaning of writing to include the telegram and the telex, which were usual at the time of the signature of the Convention. Other methods of electronic communications which are popular today were unknown in those days of the drafting of the CISG. When in January 1988 the Convention finally entered into force, the fax, which was just beginning to be used, was easily accepted as equivalent to a written document.[18] After all, it was a printed thermal paper that decolorizes [page 644] with the passing of time, but as paper was assimilated to a telegram or telex. However, the problem gets more complicated with other current forms of electronic interchange. In fact, the newly-developed electronic transactions do not involve a 'writing' in the classical sense of words written in a paper. Only after domestic legal recognition of electronic contracting,[19] scholars have shown a more flexible attitude to extend to electronic documents the equivalence of written instrument in the sense of Article 13 CISG.[20]

In fact, the term 'writing' appears in several articles of the CISG.[21] However, by not requiring any specific form, CISG would allow to include the use of electronic documents under the CISG. In this sense a written instrument could be seen as a recording of words in a tangible form,[22] perceptible by the human senses and electronic documents undoubtedly fall into that category. [page 645]

CISG ADVISORY COUNCIL OPINIONS

The Institute of International Commercial Law of Pace University developed an extensive database related to the CISG [23] The Institute has been a main supporter of the idea of creating an Advisory Council (AC) formed by a group of recognized scholars aimed at promoting the uniform international interpretation of the CISG where the imprint of our praised friend Al Kritzer could be recognized. This initiative has been justifiably praised.[24]

The first opinion of the group was dedicated to electronic contracts. It affirms that a contract may be concluded or evidenced by electronic communications. This conclusion was based on the lack of requirements of form connected with the formation of the contract. In the opinion of the AC, 'writing' in the CISG also includes any electronic communication retrievable in perceivable form. Unless the parties have limited the notion of writing, there should be a presumption that electronic communications are included in the term 'writing.'

On the other hand, the application of the parol evidence doctrine to a sale contract regulated by the CISG has been considered in CISG AC opinion No. 3.[25] The main conclusions of that AC opinion are:

  1. The Parol Evidence Rule has not been incorporated into the CISG. The CISG governs the role and weight to be ascribed to contractual writing.

  2. In some common law jurisdictions, the Plain Meaning Rule prevents a court from considering evidence outside a seemingly unambiguous writing for purposes of contractual interpretation. The Plain Meaning Rule does not apply under the CISG.[26]

The 'Comment' to this opinion recognizes that in the United States the parol evidence rule is concerned with whether the writing involved was a complete expression of the terms it contained, and whether this document is [page 646] intended to be seen as the final expression of the will of the parties concerning its content.[27] In the first situation, the writing regarded as 'integrated' forbids either party to introduce other evidence which could contradict it.[28] The opinion contemplates the merger clause as the stipulation which usually provides that the writing represents the entire or the unique agreement of the parties, and that no document or evidence will be accepted to contradict the writing. As expected, the opinion recognizes that the parol evidence rule has not been incorporated into the CISG, which governs 'the role and weight to be ascribed to contractual writing.’[29]

ELECTRONIC DOCUMENTS AND THE PRINCIPLES OF UNIDROIT

The objective of the UNIDROIT Principles of International Commercial Contracts is to offer to the international arena a set of well-balanced principles applicable to any international agreement regardless of the legal traditions to which the parties belong.[30] Among the definitions of Article 1.11 of the UNIDROIT Principles 2004 in paragraph (4) it is explained that 'writing' means any mode of communication that preserves a 'record' of the information contained therein and is capable of being reproduced in a tangible form.[31] 'Record' makes reference to information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.[32]

The implications emerging from the lack of references among the UNIDROIT Principles about the suggested way of preservation of a record and [page 647] its ability of being reproduced gives rise to a number of questions.[33] One of the major problems that must be resolved by any possible form of electronic document is the question of its certainty. Those paperless documents are easily modifiable, and their execution in the electronic world have essentially altered all circumstances which were traditionally shown in a written contract, in the way the offer was produced and the acceptance of the offer evidenced.

Just as is the case with the CISG, the parol evidence rule has not been included in the UNIDROIT Principles, another important set of rules looking to attain international uniformity. Under the integration or 'merger clause,' Article 2.1.17 of the UNIDROIT Principles states:

‘A contract in writing which contains a clause indicating that the writing completely embodies the terms on which the parties have agreed cannot be contradicted or supplemented by evidence of prior statements or agreements. However such statements or agreements may be used to interpret the writing.’[34]

In the absence of such a merger clause, Article 1.2 of the Principles accepts any utterances proved by any means.[35]

The solution obtained balances the parol evidence rule with a rule that allows the admission of evidence of circumstances subsequent to the writing, but only for the purpose of interpreting the contract. The solution is also consistent with the principle stated in Article 4.3(a)[36] which accepts the preliminary negotiations between the parties as a circumstance which has to be taken into account when applying the main rules of interpretation. First, the common intention of the parties or subjective test must be considered; and second, if the intention cannot be ascertained, what a reasonable person [page 648] would have meant in the same circumstances, or test of reasonableness must be looked to.

THE MEANING OF ELECTRONIC DOCUMENTS AS WRITING IN THE UNCITRAL MODEL LAW AND IN THE 2005 UNITED NATIONS (UN) CONVENTION ON ELECTRONIC CONTRACTS

More than two decades ago, the UN Commission on International Trade (UNCITRAL) had already expressed its concern with electronic commerce and called upon the national governments to review their policies on this subject matter.[37] In 1996, the General Assembly of the UN approved the Model Law.[38] Article 6 of the Model Law assimilates an electronic message to a writing,[39] and Article 9 of the same instrument regards the question of giving due evidential weight to the information contained in a data message. In assessing the evidential weight, the relevant factor will include the reliability of the manner in which the information was generated, stored or communicated, as well as the manner in which the integrity of the information [page 649] was maintained, the way the producer of the information was identified or any other relevant factor contributing to obtain certainty.[40]

The second relevant instrument in modern law related to electronic commerce is the 2005 UN Convention on the Use of Electronic Communications in International Contracts.[41] Among the principles recognized by this Convention is that a contract or a communication shall not be denied validity or enforceability on the sole ground that it is in the form of an electronic communication.[42] Concerning the form requirements the Convention states, [page 650] firstly, that nothing in the Convention requires a contract to be made or evidenced in any particular form.[43] Secondly, where the law requires that a contract must be in writing, or provides consequences for the absence of a writing, that requirement is met by an electronic document 'if the information contained therein is accessible so as to be usable for subsequent reference.'[44] The same idea is repeated for the signature and the method of identification of the related party.[45] When the law requires that a contract should be made available or must be retained in its original form, this criterion is met by an electronic document which shows reliable assurance as to the integrity of the information, as well as its completion, inalterability and lack of any addition, or change.[46] Its provisions following Article 20(1) shall apply to the CISG, but paragraphs (3) and (4) leave open the declaration on the contrary by a member state.

The UN Convention on the Use of Electronic Communications in International Contracts is still not in force. However, there are some practical points that require to be considered now.

ELECTRONIC DOCUMENTS AND EXTRINSIC EVIDENCE

We have seen how electronic instruments are assimilated to written documents in modern international commercial law, and how some doctrine has included electronic document in the idea of 'writing' of Article 13 CISG. It has been also explained how the parol evidence rule, a concept derived from the common law, has been seen as inapplicable within the frame of the CISG and modern lex mercatoria. Accordingly, the answer to the question whether a letter written on paper, or any other similar document that shows a different understanding than the one expressed by the terms of an international electronic contract, would be admissible, should be affirmative. Extrinsic evidence [page 651] is admissible and paper documents and oral agreements can constitute such 'extrinsic evidence.'

Electronic evidence is already a well-established subject in domestic law,[47] but it is a reality that not all systems used are designed to act as record-keeping systems, or to maintain an adequate record of all related electronic transactions.[48] Many are designed to support current business needs for information, but have only limited ability, if any, to keep records of the business transactions they carry out. These systems generate records, but do not have the capacity to manage those records.

In case of conflict in an international contract concluded by means of electronic correspondence, the parties will be presented with the problem of having to present to the court or arbitral tribunal the different storing systems used for preserving their own electronic records, the steps taken for preserving its security and avoiding duplication, as well as for obtaining certainty. The court will compare and decide in accordance with the presumed will of the parties. But, what sounds logical and easy could be an insurmountable problem. In a well-known American case, the principle of broad discovery related to electronic documents according to the Federal Rules of Procedure has, using the court's expression, 'hit a roadblock.'[49] In that case, just to fulfill the discovery of electronic documents requested by the claimant, the defendant had to invest several hundred thousand dollars. The rules of discovery in common law try to ensure that all relevant documents, including [page 652] those that are prejudicial to a party, should be produced at court. The civil law tradition ignores an equivalent of this proceeding presenting only those documents upon which the parties will rely for their arguments, but this fact does not affect the existence of the problem and what has been presented in the mentioned case can be seen as not only local and similar consequences can be imagined that could be produced worldwide. Any electronic contract that gives rise to litigation will require the production of evidence proving its existence which should be analyzed by the tribunal. The Advisory committee Notes to Rule 34(a) of the Federal Rule of Civil Procedure explain that the respondent may be required to supply a print-out of computer data. The requesting party would not be allow to do itself the research, but sometimes could be required to check the data compilation.[50] Business information systems that do not possess some form of built-in record-keeping functionality may be unable to produce evidence or perhaps to be incapable of capturing and retaining records for the required periods of time. Even in a case when some compatible system has been used, what has been seen as acceptable as evidence for one of the parties could be seen as different for the other party. The quoted case determined how and when the costs of discovery could be shifted, but there is not a final decision on this subject according to the American federal rules of discovery, and certainly not in the international arena.

Accordingly, the problem presented by the use of electronic documents in an international transaction will require soon that any existing electronic document-based system of mercantile administration, be re-designed to record and to maintain recorded evidence of the related electronic transactions. The storage of information should be done in a way facilitating discovery of and access to these documents for the parties and the tribunal. As things now stand, discovery of such documents could represent an exponential factor of risks and costs for disclosing and producing information.[51] Without going so far as the Federal Rules of Evidence, some kind of system should be developed in order to unify criteria on this subject-matter. In 2007, [page 653] a Guide for Federal Agencies produced by the US Department of Justice [52] recognizes the reality that

'at this point, no one can provide definitive guidelines as to what program safeguards will ultimately be necessary to protect an agency interest and create binding and enforceable obligations on the agency and those with whom it does business.'[53]

The modern legal standards for discovery of information are changing,[54] and this problem will be consequently mirrored in international transactions. This can place traders at significant risk and its implications should not be underestimated. [page 654]


FOOTNOTES

* Robert & Pamela Martin Associate Professor of Law, Paul M. Hebert Law Center, Louisiana State University. I would like to thank my colleagues Randall J. Trahan and Ewoud Hondious for his fine comments on a first draft of this text.

1. See Zuppi, AL (2007) 'The Parol Evidence Rule. A Comparative Study of the Common Law, the Civil Law Tradition and Lex Mercatoria' (35) Georgia Journal International and Comparative Law 3.

2. One of the first American decisions involving the CISG analyzed this problem in a footnote. U.S. District Court [Southern District of New York], 14 April 1992 (Filanto S.p.A. v. Chilewich International Corp.), 789 Federal Supplement 1229 (S.D.N.Y. 1992), available at: <http://cisgw3.law.pace.edu/cases/920414u1.html>. See id, fn 7 at p 1238. To the same conclusion arrived in a well reasoned decision Judge Katz in the unreported case of U.S. District Court [Southern District of New York], 6 April 1998 (Calzaturificio Claudia S.N.C. v. Olivieri Footwear Ltd.), cited as 1998 WL 164824 (S.D.N.Y.), available at: <http://cisgw3.law.pace.edu/cases/980406u1.html>. In U.S. Court of Appeals [5th Circuit], 15 June 1993 (Beijing Metals & Minerals Import/Export Corporation v. American Business Center Inc., et al.), 993 F.2d 1178 (5th Cir. 1993), available at: <http://cisgw3.law.pace.edu/cases/930615u1.html> another court asserted that the parol evidence rule as recognized in Texas was applied to the parties notwithstanding that the relationship between the parties was regulated by the CISG. See id, fn 9, at p 1182. See also U.S. Court of Appeals [11th Circuit], 29 June 1998 (MCC-Marble Ceramic Center; Inc. v. Ceramica Nuova D'Agostino S.p.A.), 144 F.3d 1384, 1389 (11th Cir. 1998).

3. See the site of the U.S. Postal service, available at: <http://www.usps.com/financials/_pdf/anrpt2006_final.pdf>.

4. Any possible statistic is just an approximate figure. See <http://ask.yahoo.com/20060324.html>, and <http://email.about.com/od/emailtrivia/f/emails_per_day.htm>.

5. Eiselen, S (1999) 'Electronic Commerce and the UN Convention on Contracts for the International Sale of Goods (CISG) 1980' (6) EDILaw Review 21-46, available at: <http://www.cisg.law.pace.edu/cisg/biblio/eiselen1.html>. Eiselen explains that, in South African law, a statutory requirement of writing is not fulfilled if the 'document' is only in electronic form. Accordingly, a fax must be printed out before it will constitute writing. Only when it has been printed out then it is regarded as a document.

6. See information on the CM/ECF System available at: <http://www.uscourts.gov/>

7. See, as examples among others, Article 1184 of the Civil Code (CC) of Argentina, Article 1708 of the Chilean CC, Article 1327 of the French CC and Article 1279 of the Spanish CC. On the other hand, including the concept of electronic document see Article 1374 of the Peruvian CC, Article 434.2 of the CC of the Russian Federation and Article 1316.1 of the French Civil Code. See also the Chilean Law 19.799 (Boletin Official, 12 April 2002), Law 43 of Panama (31 July 2001) and the Colombian Law no. 527 (135 Diario Oficia1 43673, 1999). Countries such as Australia, Bermuda, India, Ireland, Philippines, Republic of Korea, Singapore, and Slovenia have based their legislation on the Model Law.

8. This status is up to Apri1 2007. Information available at: <http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG_status.html>.

9. Three quarters of the world trade according to the database of Pace University, available at: <http://www.cisg.law.pace.edu/cisg/cisgintro.html#current>.

10. See Zuppi 'The Parol Evidence Rule' supra fn 1 at 32.

11. See (1981) United Nations Conference on Contracts for the International Sale of Goods -- Vienna, 10 March-11 April 1980 -- Official Records -- Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committees United Nations at 20.

12. Id at 270.

13. See Document A/Conf. 97/C.l/L.71, 76, Official Records supra fn 11 at 91.

14. Article 96 CISG states:

‘A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may at any time make a declaration in accordance with article 12 that any provision of article 11, article 29, or Part II of this Convention, that allows a contract of sale or its modification or termination by agreement or by offer, acceptance, or other indication of intention to be made in any form other than in writing, does not apply where any party has his place of business in that State.’

15. See note by Albert Kritzer, available at: <http://www.cisg.law.pace.edu/cisg/biblio/ho96.html>.

16. Name derived from a 1677 English statute referring to certain contracts requiring a written and signed document in order to be enforceable. See UCC § 2-201 (1995) (USA); Statute of Frauds, 1677, Section 4. Statute of Frauds Amendment Act 1828. One of the first American decisions involving the CISG analyzed this in a footnote. Filanto v. Chilewich International, supra fn 2. Judge Katz arrived at the same conclusion in a well-reasoned decision in the unreported case of Calzaturificio Claudia v. Olivieri Footwear, supra fn 2. In Beijing Metals v. American Business Center, supra fn 2, another court asserted that the parol evidence rule as recognized in Texas was applied to the parties notwithstanding that the relationship between the parties was regulated by the CISG. Id at 1182, p. 9.

17. See Del Duca, LF (2005) 'Implementation of Contract Formation Statute of Frauds, Parol Evidence, and Battle of Forms CISG Provisions in Civil and Common Law Countries' (38) Uniform Commercial Code Law Journal 55 at 56, also available at: <http://www.cisg.law.pace.edu/cisg/biblio/delduca3.html>. The principle of freedom of forms does not prevent the parties from deciding otherwise. Article 29(2) of the CISG explains:

‘A contract in writing which contains a provision requiring any modification or termination by agreement to be in writing may not be otherwise modified or terminated by agreement. However, a party may be precluded by his conduct from asserting such a provision to the extent that the other party has relied on that conduct.'

The only limitation appears in the restriction explained in Article 96 CISG, when the law of Contracting State requires written contracts of sale.

18. Garro, AM and Zuppi, AL (1990) Compraventa lnternacional de Mercaderias La Rocca at 69; Herber, R and Czerwenka, B (1991) Internationales Kaufrecht C.H. Beck at 71; see also Schlechtriem, P (2007) Internationales UN-Kaufrecht (4th ed) Mohr para 68. See the decision of the Russian Federation Chamber of Commerce Arbitration Tribunal, 10 June 1999,55/1998, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/990610r1.html>, although applying Article 434.2 of the Russian Civil Code which specifically includes the telefax as a writing. In the same direction § 127 of the German BGB which includes 'means of telecommunication', a term wide enough to include the fax. However, an Austrian decision refused to accept any analogical interpretation in relation with the fax. See Oberster Gerichtshof (Austria), 27 April 1997, 6 Ob 512/96, available in German at: <http://www.cisg.at/6_51296.htm>

19. Rule 34(a) of the U.S. Federal Rules of Civil Procedure were amended already in 1970 to broaden the description of 'documents' to include data compilations from which information can be obtained. See also Federal Electronic Signatures in Global and Commerce (ESGNC) Act, 15 U.S.C. 7001, available at: <http://www.ftc.gov/os/2001/06/esign7.htm>; and the Uniform Electronic Transactions Act (UETA), available at: <http://www.law.upenn.edu/bll/ulc/uecicta/eta1299.htm>.

20. See CISG-AC Opinion no 1, Electronic Communications under CISG, 15 August 2003 (Rapporteur: Professor Christina Ramberg, Gothenburg, Sweden), available at: <http://www.cisg.law.pace.edu/cisg/CISG-AC-op1.html> considering that '[a] contract may be concluded or evidenced by electronic communications'. See also Honnold, J (1999) Uniform Law for International Sales under the 1980 United Nations Convention (3rd ed) Kluwer 141, available at: <http://www.cisg.law.pace.edu/cisg/biblio/ho13.html>; Schroeter, UG (2007) 'Interpretation of "writing": Comparison between provisions of the CISG (Article 13) and the counterpart provisions of the Principles of European Contract Law' in Felemegas, J (ed) (2007) An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law Cambridge University Press 288 at 293, also available at: <http://www.cisg.law.pace.edu/cisg/text/peclcomp13.html>.

21. See Articles 11, 12, 13, 21, 29 and 96 CISG.

22. Garner, B (ed) (1999) Black’s Law Dictionary (7th ed) Sweet & Maxwell 1603.

23. See database at: <http://www.cisg.law.pace.edu>.

24. See Herber, R (2003) 'Eine neue Institution: Der CISG Advisory Council' Internationales Handelsrecht 201-2.

25. See CISG-AC Opinion no 3, Parol Evidence Rule, Plain Meaning Rule, Contractual Merger Clause and the CISG, 23 October 2004 (Rapporteur: Professor Richard Hyland, Rutgers Law School, Camden, NJ, USA), available at: <http://www.cisg.law.pace.edu/cisg/CISG-AC-op3.html>.

26. Id.

27. Id.

28. Id para 1.2.5.

29. Id para 2.

30. See the enlarged version of the UNIDROIT Principles of International Commercial Contracts of 2004, in Bonell, MJ (ed) (2005) An International Restatement of Contract Law: the UNIDROIT Principles of International Commercial Contracts (3rd ed) Transnational Publishers, with versions of the Principles in Chinese, English, French, German, Italian, Russian and Spanish.

31. See Bonell An International Restatement of Contract Law supra fn 30 at 51.

32. I am quoting the definition of 'record' used by the Section 102(a)(54) of the Uniform Computer Information Transactions Act (UCITA), drafted in 1999 by the National Conference of Commissioners On Uniform State Laws, available at: <http://www.law.upenn.edu/bll/ulc/ucita/ucita200.htm>.

33. See Gautrais, V (2003) 'Les Principes d'Unidroit face au contrat electronique' in Lefebvre, G (ed) Les Journees Maximilien-Caron 2001. Les principes d'UNIDROIT et les contrats internationaux: aspects pratiques Themis 111 at 117.

34. Article 2.1.17 UNIDROIT Principles 2004.

35. Article 1.2. UNIDROIT Principles 2004 (No form required):

'Nothing in these Principles requires a contract, statement or any other act to be made in or evidenced by a particular form. It may be proved by any means, including witnesses.'

36. See Official Comment, available at: <http://www.unilex.info/dynasite.cfm?dssid=2377&dsmid=13637&x=1>.

37. See for history of the drafting of the UNCITRAL Model Law, Boss, AH (1998) 'Electronic Commerce and the Symbiotic Relationship Between International and Domestic Law Reform ' (72) Tulane Law Review 1931 at 1947.

38. See 'Report of the United Nations Commission on International Trade Law on the Work of its Twenty-Ninth Session' United Nations General Assembly, Official Records, 51st Session, Supplement No 17 (A/51/17), at 70 Annex I (1996), reprinted in (XXVII) UNCITRAL Yearbook 1996, 237.

39. See Article 6 of the 1996 UNCITRAL Model Law on Electronic Commerce, available at: <http://www.uncitral.org/pdf/english/texts/electcom/05-89450_Ebook.pdf>:

‘Article 6. Writing

(1) Where the law requires information to be in writing, that requirement is met by a data message if the information contained therein is accessible so as to be usable for subsequent reference.

(2) Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the information not being in writing.

(3) The provisions of this article do not apply to the following: [...].'

See id Article 2 for the definition of 'Data message' as information generated, sent, received or stored by electronic, optical or similar means including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.

40. See id Article 9(2). On the so called 'preservation letters' and the duty of the parties to preserve electronic data, see Paul, GL and Nearon, BH (2005) The Discovery Revolution ABA at p. 41.

41. See Resolution 60/21 of 9 December 2005, United Nations General Assembly, Official Records, 60th Session, U.N. Doc. A/RES/60/21. The treaty will be open for signature by all States until 16 January 2008. It is subject to ratification, acceptance or approval by the signatory States, and open for accession by all States that are not signatory States. In accordance with its Article 23, it will enter 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. A signature event to promote participation took place on 6 July 2006 during UNCITRAL's thirty-ninth session in New York. In November 2006 Sierra Leone joined the Central African Republic, China, Lebanon, Madagascar, Senegal, Singapore and Sri Lanka as signatories states of this Convention. For a comparison between this Convention and the UNCITRAL Model law, see Chong, HW & and Chao, J (2006) 'United Nations Convention on the Use of Electronic Communications in International Contracts --  A New Global Standard' (18) Singapore Academy of Law Journal 116 at 136 and Estrella Faria, JA (2006) 'Online Contracting: Legal Certainty for Global Business -- The New U.N. Convention on the Use of Electronic Communications in International Contracts' (39) Uniform Commercial Code Law Journal 25.

42. See U.N GAOR, 60th Session, Resolution 60/21 of December 9, 2005, U.N. Doc. A/RES/60/21. The treaty will be open for signature by all States until 16 January 2008. It is subject to ratification, acceptance or approval by the signatory States, and open for accession by all States that are not signatory States. In accordance with its article 23, it will enter 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. At the time of presentation of this Article eighteen states have signed the Convention. See current status available at <http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/2005Convention_status.html>.

For a comparison between this Convention and the UNCITRAL Model law, see Hah W. Chong & Joyce Chao, "United Nations Convention on the Use of Electronic Communications in International Contracts -- A New Global Standard," 18 Singapore Academy of Law Journal (2006), 116, 136 and José A. Estrella Faria, "Online Contracting: Legal Certainty for Global Business -- The New U.N. Convention on the Use of Electronic Communications in International Contracts," 39 Uniform Corn. Code J., 25.

43. Id, Article 9(1).

44. Idem, Article 9(2).

45. See id, Article 9(3).

46. Idem, Article 9(4) and (5).

47. 'Electronic evidence' in this sense would be any information created or stored in digital form whenever a computer is used to accomplish a task. See Chung, CS and Byer, DJ (1998) 'The Electronic Paper Trail: Evidentiary Obstacles to Discovery and Admission of Electronic Evidence' (4) Boston University Journal of Science and Technology Law para 8 with references.

48. See, for example, the guidelines of the Australian Government on recordkeeping, available at: <http://www.naa.gov.au/recordkeeping/er/guidelines/4-creating.html>.

49. See Zubulake v. UBS Warburg LLC. 217 F.R.D. 309 (2003), 311. According to the Southern District of New York District Court this case provides a casebook example of the difficulty of balancing broad discovery and manageable costs: an employee sued her employer for gender discrimination and illegal retaliation. The plaintiff requested the defendant to discover all documents concerning any communication by or between the employees of the defendant concerning plaintiff. Defendant responded with 350 pages of documents including approximately 100 pages of emails. When the parties began discussing the production of backup tapes, the defendant presented an estimated bill of $300,000 representing the cost of producing it.

50. See Fed. R. Civ. P. 34(a) advisory committee's note (1970 amend.), and its quotation in re Ford. 345 F.3d 1315 (11th Cir. 2003).

51. See Solovy, J and Bymanm, R (2003) 'There Ought to be a Law' Nat'l L.L. 27, B6 with references and cases.

52. See 'Legal Considerations in Designing and Implementing Electronic Processes: A Guide For Federal Agencies', available at: <http://www.cybercrime.gov/eprocess.htm>.

53. Id point I.B, at p.7.

54. See Youst, LR and Koh, HL (Summer 1997) 'Management and Discovery of Electronically Stored Information' Computer Law Review and Technology Journal 73, available at: <http://www.smu.edu/csr/Youst.pdf>.


©Pace Law School Institute of International Commercial Law - Last updated September 2, 2010
Go to Database Directory || Go to Bibliography
Comments/Contributions