Issues on essential elements of formation of e-contract in Malaysia: e-consumers' perspective

Although e-commerce is growing at a significant rate, a number of stumbling blocks continue to hamper its development. One stumbling block relates to formation of e-contract. There remains uncertainty whether the traditional principles of contract law can be adapted to the needs of electronic contracting. Consequently parties might disagree as to what point and in which country an e-contract is formed. This issue needs to be addressed to boost the integrity of electronic transactions especially in sale of goods since the subsequent rights and liabilities of the contracting parties will depend on whether an agreement has been reached between them. Undeniably, the electronic contract is significantly different from traditional contract which trigger various new legal issues even at the initial stage of the contract. Based on Malaysian legal practice and in comparison with United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce as well as United Kingdom law and European Union’s Directives on e-commerce, this paper seeks to analyze and identify consumer issues concerning the formation of e-contracts. This includes the discussion on the creation of legally enforceable agreement, the appropriateness of the postal rule and its application to e-mail, the need of written contract as well as digital signature and the uncertainty of where and when the e-contract is formed. The paper also examines relevant Malaysian legislation on formation of e-contract including the Contracts Act 1950, Sale of Goods Act 195, Electronic Commerce Act 2006 and the Digital Signature Act 1997 and the adequacy of the existing law in protecting e-consumers

A Critique of Argentine E-Commerce Law and Recommendations for Improvement

Argentina has been experiencing rapid growth in internet accessibility and E-commerce, but its E-commerce laws need to be updated. The nation enacted a Digital Signature Law (“DSL”) in 2001. Digital signatures and documents are valid in Argentina if they meet stringent security requirements and can be used to comply with legal requirements for: a handwritten signature; a paper document; an original paper document; and retention of a paper document. A digital certificate must be issued by a licensed certification authority (“CA”) and must accurately identify the subscriber. The CA will issue a private key to the subscriber with the certificate, and the CA must revoke the certificate if security is compromised. CA’s are licensed and regulated by the federal government and may be audited and sanctioned for legal violations. CA’s may be responsible for damages incurred by third parties due to the CA’s acts or omissions. Exemplary attributes of this law include: (1) mandatory licensing of CA’s; (2) the rights and responsibilities of subscribers; (3) mandatory E-government with free CA service; and (4) the authorization of Registration Authorities to work for CA’s in the processing of applications for certificates. The DSL provides a satisfactory legal foundation for Argentine E-commerce, but it needs to be calibrated and supplemented. Recommended changes and additions to Argentine E-commerce law include: (1) enactment of a comprehensive Electronic Transactions Law which will incorporate all laws pertinent to E-commerce, including E-contract rules; (2) recognition of the validity of the electronic form in compliance with several additional requirements of other statutes, including notarization; (3) deletion of all exclusions from coverage, which will potentially allow E-signatures and E-documents to be used in all situations; (4) addition of rules for electronic automated contracts and electronic carriage contracts; (5) addition of consumer protections for E-buyers; (6) establishment of Information Technology Courts for resolution of E-commerce disputes; (7) creation of long-arm jurisdiction over foreign E-commerce parties; (8) licensing of the Argentine Post Office as a CA; (9) adoption of a National ID Card containing a digital signature which can be activated by a CA, including the Post Office; (10) enactment of computer crimes, including Intentional Injection of a Virus into a Computer System; and (11) enactment of a third-generation E-signature law to replace the first-generation DSL

Failings in the Treatment of Electronic Signatures

Original article can be found at: http://www.herts.ac.uk/courses/schools-of-study/law/hertfordshire-law-journal/home.cfmPeer reviewe

The Requirements of Writing for Electronic Land Contracts - The Queensland Experience Compared with Other Jurisdictions

The increase in popularity of the Internet has seen more and more people entering into online contracts. However the move from paper based commercial transactions to using electronic communication techniques raises questions as to the validity of such contracts, the time and place of their formation, proof of the terms, the authentication and integrity of the electronic communications and determining the applicable law. This article examines the traditional legal requirements of writing for land contracts focussing on the law of Queensland, Australia. The authors critically analyse the ability of these accepted principles to adapt to a digital medium, and compare and contrast the approaches in several jurisdictions. They conclude by suggesting a framework for the application of existing legal principles to electronic land contracts

Are Online Business Transactions Executed by Electronic Signatures Legally Binding?

Most of us believe that we make contracts over the Internet all the time. We buy books and computers, arrange for hotels and planes, trade stocks, and apply for mortgages. But as recently as seven months ago that transaction was most likely not legally binding. This uncertainty led many practitioners, businesspeople, and consumers to question the efficacy of contracts executed by electronic signatures. Without a uniform standard, many jurisdictions ruled inconsistently, while other jurisdictions did not consider the issue. This disparate treatment threatened the legitimacy of online agreements and deprived both consumers and businesses of the certainty and predictability expected from well-developed markets. The law\u27s formalities evolved outside of the digital world, and the process of adapting them to it has proven to be more difficult than expected. In June of 2000, Congress attempted to solve this problem with the Electronic Signatures in Global and National Commerce Act (E-Sign)

PKI Interoperability: Still an Issue? A Solution in the X. 509 Realm

There exist many obstacles that slow the global adoption of public key infrastructure (PKI) technology. The PKI interoperability problem, being poorly understood, is one of the most confusing. In this paper, we clarify the PKI interoperability issue by exploring both the juridical and technical domains. We demonstrate the origin of the PKI interoperability problem by determining its root causes, the latter being legal, organizational and technical differences between countries, which mean that relying parties have no one to rely on. We explain how difficult it is to harmonize them. Finally, we propose to handle the interoperability problem from the trust management point of view, by introducing the role of a trust broker which is in charge of helping relying parties make informed decisions about X.509 certificates

Legal Implications of E-Commerce: Basic Issues, Initiatives and Experiences in Asia

This paper gives a short overview on the major issues that have to be taken into account when formulating e-commerce-related laws and regulations and introduces two model laws relating to e-commerce and e-signatures which were created by the United Nations Commission of International trade Law. The paper has a closer look at e-commerce developments in Asia and the Pacific and gives an overview of the state of implementation of e-commerce laws. In conclusion, it discusses the e-ASEAN Reference Framework for electronic commerce legal infrastructure as example of a regional initiative to harmonize the legal basis for e-commerce.legal infrastructure, e-commerce laws, Asia, e-signature, e-ASEAN Reference Framework

Meaning and Validity of an Electronic Contract and Providing Evidence for It: The Comparative Analysis

Pravna regulacija transakcija elektronskim putem doživjela je pravi procvat u posljednje vrijeme. Usporedna zakonodavastva posebnu pažnju su posvetila problemima u vezi sa zaključivanjem elektronskih ugovora, odnosno postizanjem pravno relevantne suglasnosti prilikom njihovog zaključenja, dokazivanju postojanja i tumačenju sadržaja elektronskih ugovora i elektronskoj formi kao uvjetu punovažnosti ugovora. Zahtjevom primjene sigurnog (naprednog, kvalificiranog) elektronskog potpisa pravni propisi posvećeni ovoj problematici normirali su i pitanje zaštite integriteta elektronskog dokumenta i identiteta elektronskog potpisa. Također, rasvijetljena je i problematika zaključivanja ugovora o licenci pritiskom dugmeta na mišu, zaključivanje ugovora posredstvom e-pošte i zaključivanje ugovora o licenci posredstvom Interneta. Usporedno-pravni propisi posvećeni elektronskim ugovorima mahom sadrže propise posvećene zaštiti potrošača, pogotovo u situacijama kada ovi, prilikom zaključenja ugovora, počine nenamjerne greške. Kako bi se zaštitili potrošači, u pojedinim usporednim zakonodavstvima elektronski ugovori čiji predmet prelazi određeni iznos, odnosno vrijednost, mogu proizvesti pravni učinak samo pod uvjetom da elektronski zapis pisane redakcije ugovora i potpisi autentificirani.The legal regulation governing electronic transactions in comparative legal systems has been flourishing recently. International model laws and directives have paid a special attention to issues concerning the electronic contracts stipulation (i.e. a manifestation of relevant legal assent to conclude a contract), providing evidence on contract existence and interpretation of their content in civil procedures and electronic form as a requirement for contract to be valid and legally binding. By introducing the requirement of applying the advanced (secure, qualified) electronic signature, the legal regulations governing the above mentioned issues have also introduced norms on protection of electronic document integrity and electronic signature identity. Furthermore, completely new legal concepts have been developed in a domain of electronic commerce, i.e. electronic signature, secure (advanced) electronic signature, click-wrap licenses (click to agree contract), e-mail contracts, Internet licensing agreements etc. Comparative legal regulations on electronic contracts have introduced special and explicit rules governing the consumer protection, especially in cases when consumers enter into a contract by unintentional mistake. In addition, if the price indicated in the Internet contract is above a certain limit, some national legal systems require that signatures affixed to the electronic contract have to be authenticated

Comparative analysis of copyright assignment and licence formalities for Open Source Contributor Agreements

This article discusses formal requirements in open source software contributor copyright assignment and licensing agreements. Contributor agreements are contracts by which software developers transfer or license their work on behalf of an open source project. This is done for convenience and enforcement purposes, and usually takes the form of a formal contract. This work conducts a comparative analysis of how several jurisdicitons regard those agreements. We specifically look at the formal requirements across those countries to ascertain whether formalities are constitutive or probative. We then look at the consequences of the lack of formalities for the validity of those contributor agreements