How to Conclude International E-commerce Contracts

Ⅰ. Formation & Validity of E-commerce Contracts

UNCITRAL Model Law on Electronic Commerce stipulates that in the context of contract formation, unless otherwise agreed by the parties, an offer and the acceptance of the offer may be expressed by means of data messages. If a data message is used in the formation of a contract, that contract shall not be denied validity or enforceability on the sole ground that a data message is used for that purpose. As between the originator and the addressee of a data message, a declaration of will or other statement shall not be denied legal effect, validity or enforceability solely on the ground that it is in the form of a data message.

Though the CISG and the Contract Law lack detailed regulations for the formation, signature, certification of electronic contract, and maneuverable articles on the formation of electronic contracts, contracts concluded by means of data message are approbatory. Article 13 of the CISG validates that “writing” includes telegram and telex. Under the Contract Law, “written form” refers to documents of a form in which the content of the contract may be visibly recorded, such as contact instruments, correspondence, and electronic documents (including telegrams, telexes, facsimiles, electronic data interchange and electronic mail).

Ⅱ. Acknowledgement of Receipt

Under the article 14 of UNCITRAL Model Law on Electronic Commerce, if the originator has not agreed with the addressee that the acknowledgement must be given in a particular form or by a particular method, the addressee may give an acknowledgement by any communication or any conduct provided that such communication is sufficient to indicate that the data message has been received. If the originator has stated that the data message is conditional on receipt of the acknowledgement, until the acknowledgement is received, the data message is treated as if it has never been sent. In the event that the originator has not stated that the data message is conditional on receipt of the acknowledgement, and the acknowledgement has not been received by the originator within the time specified or agreed or, if no time has been specified or agreed, within a reasonable time, the originator may give notice to the addressee stating that no acknowledgement has been received and specifying a reasonable time by which the acknowledgement must be received. If the acknowledgement is not received within the time as specified above, the originator may, upon notice to the addressee, treat the data message as if it had never been sent, or exercise any other rights it may have. When the originator receives the addressee’s acknowledgement of receipt and the received acknowledgement states that the related data message met technical requirements, it is presumed that those requirements have been met, and that the addressee has received the relevant data message, but the presumption does not imply that the data message corresponds to the message received.

In accordance with the above regulations, it is understandable that the receipt of acknowledgement in electronic commercial activities is of great importance, but on the other hand, the receipt of acknowledgement itself does not imply that the acknowledgement has the effectiveness as an acceptance. So, in electronic commercial activities, coded electronic signature is commonly used to certify the identity of the originator of a data message and to ensure the integrality and incontestability of a data message. For some material transactions in the form of business-to-business (B2B), certification online may be applied to validate the effectiveness of an electronic acknowledgement.

Ⅲ. Time & Place of Dispatch and Receipt of Data Message

As regards to the time of dispatch and receipt of data message, the Article 15 of UNCITRAL Model Law on Electronic Commerce stipulates that dispatch occurs when it enters an information system outside the control of the originator or of the person who sent the data message on behalf of the originator unless the originator and the addressee agreed otherwise. But the determination of the time of receipt of a data message is quite complex. If the addressee has designated an information system for the purpose of receiving data messages, receipt occurs at the time when the data message enters the designated information system. If the data message is sent to an information system of the addressee that is not the designated information system, the receipt occurs at the time when the addressee retrieves the data message. In the event that the addressee has not designated an information system, receipt occurs when the data message enters an information system of the addressee. Of course, as the time of dispatch and receipt of data message can be agreed and determined by the originator and the address in other ways.

With regard to the place of dispatch and receipt of data message, it is stipulated in the Article 15 of UNCITRAL Model Law on Electronic Commerce that a data message is dispatched at the place where the originator has its place of business, and received at the place where the addressee has its place of business if the originator and the addressee have not agreed otherwise. If the originator or the addressee has more than one place of business, the place of business is the one that has the closest relationship to the transaction or the principal place of business. In case the originator or the addressee does not have a place of business, its habitual residence shall be regarded to be the place of business.