The United Nations Convention on the Use of Electronic Communications in International Contracts hereinafter the “Electronic Communications Convention” or the “Convention”) was prepared by the United Nations Commission on International Trade Law (UNCITRAL) between 2002 and 2005. The General Assembly adopted the Convention on 23 November 2005 by its resolution 60/21 and the Secretary-General opened it for signature on 16 January 2006.

When it approved the final draft for adoption by the General Assembly, at its thirty-eighth session (Vienna, 4-15 July 2005), UNCITRAL requested the Secretariat to prepare explanatory notes on the new instrument. At its thirty-ninth session (New York, 19 June-7 July 2006), UNCITRAL took note of the explanatory notes prepared by the Secretariat and requested the Secretariat to publish the notes together with the text of the Convention.

The purpose of the Electronic Communications Convention is to offer practical solutions for issues related to the use of electronic means of communication in connection with international contracts.

The Convention is not intended to establish uniform rules for substantive contractual issues that are not specifically related to the use of electronic communications.

The Electronic Communications Convention applies to the “use of electronic communications in connection with the formation or performance of a contract between parties whose places of business are in different States” “Electronic communication” includes any statement, declaration, demand, notice or request, including an offer and the acceptance of an offer, made by electronic, magnetic, optical or similar means in connection with the formation or performance of a contract.

The word “contract” in the Convention is used in a broad way and includes, for example, arbitration agreements and other legally binding agreements whether or not they are usually called “contracts”.

The Convention applies to international contracts, that is, contracts between parties located in two different States, but it is not necessary for both of those States to be contracting States of the Convention. However, the Convention only applies when the law of a contracting State is the law applicable to the dealings between the parties, which is to be determined by the rules on private international law of the forum State, if the parties have not validly chosen the applicable law.

The Convention does not apply to electronic communications exchanged in connection with contracts entered into for personal, family or household purposes.

However, unlike the corresponding exclusion under article 2 (a) of the United Nations Convention on Contracts for the International Sale of Goods1 (the “United Nations Sales Convention”), the exclusion of these transactions under the Electronic Communications Convention is an absolute one, meaning that the Convention would not apply to contracts entered into for personal, family or household purposes, even if the particular purpose of the contract was not apparent to the other party.

Furthermore, the Convention does not apply to transactions in certain financial markets subject to specific regulation or industry standards. These transactions have been excluded because the financial service sector is already subject to well-defined regulatory controls and industry standards that address issues relating to electronic commerce in an effective way for the worldwide functioning of that sector. Lastly, the Convention does not apply to negotiable instruments or documents of title, in view of the particular difficulty of creating an electronic equivalent of paper-based negotiability, a goal for which special rules would need to be devised.

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1. Essential objectives of the Convention

The preamble is intended to serve as a statement of the general principles on which the Electronic Communications Convention is based and which, under article, may be used in filling the gaps left in the Convention.

The essential objective of the Convention is reflected in the fourth paragraph of the Preamble, that is, to establish uniform rules intended to remove obstacles to the use of electronic communications in international contracts, including obstacles that might result from the operation of existing international trade law instruments, with a view to enhancing legal certainty and commercial predictability.

2. Main principles on which the Convention is based

The fifth paragraph of the Preamble makes reference to two principles that have guided the entire work of UNCITRAL in the area of electronic commerce: technological neutrality and functional equivalence.

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The United Nations Commission on International Trade Law (UNCITRAL) is a subsidiary body of the General Assembly. It prepares international legislative texts for use by States in modernizing commercial law and non-legislative texts for use by commercial parties in negotiating transactions.

Legislative texts include the following: United Nations Convention on Contracts for the International Sale of Goods; Convention on the Limitation Period in the International Sale of Goods; UNCITRAL Model Law on International Commercial Arbitration; UNCITRAL Model Law on Procurement of Goods, Construction and Services; United Nations Convention on Independent Guarantees and Stand-by Letters of Credit; UNCITRAL Model Law on International Credit Transfers; United Nations Convention on International Bills of Exchange and International Promissory Notes; United Nations Convention on the Carriage of Goods by Sea, 1978 (Hamburg); United Nations Convention on the Liability of Operators of Transport Terminals in International Trade; and UNCITRAL Model Law on Electronic Commerce.

Non-legislative texts include the following: UNCITRAL Arbitration Rules; UNCITRAL Conciliation Rules; UNCITRAL Notes on Organizing Arbitral Proceedings; UNCITRAL Legal Guide on Drawing Up International Contracts for the Construction of Industrial Works; and UNCITRAL Legal Guide on International Countertrade Transactions.

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