By Alejandra Lopez-Contreras
Baker & McKenzie |
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Undeniably, the Internet has brought with it the promise of a global market and a variety of ways to do business. Companies have found the most effective tools for the optimization of their processes and the reduction of their cost in new technologies; however, they have also confronted the challenge of promoting their businesses and making the network a safer place to carry out transactions.
Today, we find that it is easier, faster and less expensive to do business over the Internet,
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but we are facing the necessity to legitimize the activities carried out over this medium. Experience has taught us that nowadays companies often take great risks online, jeopardizing their image and prestige, normally through the three main players in transactions: the client, the network server and public and private networks. Technology provides the basis for risk management, but the law requires certain protections for online transactions, as in today's world, all kinds of negotiations take place under circumstances that are alien to those of the traditional contracting process.
Despite new legal regulations related to digital signatures in Mexico, and their attempt to make on-line transactions more secure and reliable, we still take risks every time we do business over the Internet. The technological advances raise new issues of concern, among which we find:
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Contracts entered into via electronic media, |
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Jurisdiction and applicable law, and |
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Digital technology |
In the absence of a physical document containing the parties' hand-written signatures, online contracts require special regulation. Thus, many legislative attempts have been made, aiming to provide the digital signature with the characteristics that will allow both electronic contracts and the traditional, hard copy contracts, to be equally valid. These new regulations do not intend to interfere with the already existing provisions, but to coexist with them, trying to update the contracting norms to meet the needs of the technological advances.
Without a doubt, the Internet's success consists of being able to gain access from an
y place to an almost infinite amount of information, services, and products. While the advantages from the business standpoint are undisputed, the legal implications of such transactions are complex, as quite seldom is there certainty regarding the applicable law, or the competent jurisdiction before which a conflict may be raised. Given the importance of the parties' signature in contracts, we will focus on the different aspects to be taken into account in respect of digital technology.
Like technology, the signature has had its own evolution throughout history. In ancient Rome, the signature consisted of a solemn ceremony in which the author passed a hand over the document. In the Middle Ages, the signature became a personal seal, mark or a sign. In effect, the signature is a person's particular tracing of his or her name. Today, the signature is defined as a peculiar tracing by means of which a person writes down his or her name in order to show himself or herself as the author of a document and the recognition of its content Thus, the objective of the electronic signature is to protect the legitimacy of the message itself and to be able to offer unmistakable proof of the authenticity of an electronic document digitally signed. The technological and legal certainty requires developing a legal foundation, and in Mexico we have, among others, the following provisions that address the issue:
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Securities Market Law - with this law, Mexico begins to consider communications through electronic media and recognizes their legitimacy or legal validity. Regarding stock-exchange hiring, it reads: "the involved parties may freely agree on the use of letters, telegraphy, telex, telefax, or any other electronic media..." |
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Credit Institutions Law - This law establishes the equivalence between an autograph signature and an electronic, digital one. |
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Customs Law - This law points out that when goods are subject to tariff restrictions and regulations whose fulfillment is demonstrated through electronic media, the import manifest (pedimento) must include the electronic signature. |
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Law of Acquisitions, Leasing, and Public Sector Services. |
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Electronic Commerce Amendments. (May 29, 2000) |
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o Federal Civil Code
o Federal Civil Procedures Code
o Commerce Code
o Federal Consumer's Protection Law |
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Federal Administrative Procedure Law (May 30, 2000), and, finally |
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The Decree amending and adding to various provisions of the Commerce Code regarding the electronic signature, as published in the Federal Official Gazette on August 27, 2003, which took effect 90 days after its publication (November 27, 2003). |
| By Baker & McKenzie |
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For further information, please contact us at info.mexico@bakernet.com
All Rights Reserved © Baker & McKenzie Abogados, S.C. Mexico 2003 |
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