Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Publicación cientíca en formato digital
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185
Depósito legal pp 197402ZU34
ppi 201502ZU4645
Vol.40 N° 74
2022
Recibido el 24/04/2022 Aceptado el 16/07/2022
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
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cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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Vol. 40, Nº 74 (2022), 160-177
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Trade agreements, digital development
and international commercial arbitration
DOI: https://doi.org/10.46398/cuestpol.4074.08
Volodymyr Nahnybida *
Yurii Bilousov **
Yaroslav Bliakharskyi ***
Ievgen Boiarskyi ****
Anatolii Ishchuk *****
Abstract
The purpose of the article was to study the problems that arise
during the settlement of disputes in the order of international
commercial arbitration. The article used general scientic
(dialectic, analysis and synthesis) and special legal (comparative
legal, formal-logical, systemic, hermeneutic, axiological)
methods. In the results of the research, it was established that
the characteristic features of electronic development contracts in
international trade are: electronic forms of conclusion of pre-contractual
and contractual communication, making amendments and additions to the
contract. Taking into account the features that accompany the chosen form
of contracting prevails the need to refer to the provisions of the applicable
legislation on tax and customs legislation and protection of personal data,
etc. The conclusions state that the main problems in the resolution of
disputes arising from e-commerce contracts, in international commercial
arbitration, are the issues of requirements and validity of the arbitration
clauses contained in such contracts, the importance of the agreements
reached in the pre-contractual stage in the subsequent resolution of
disputes between the parties and the problems of proof arising from the
peculiarities of entering into relevant contracts.
* Doctor in Law, Associate professor, Head of the Scientic Laboratory of the Academician F. H. Burchak
Scientic-Research Institute of Private Law and Entrepreneurship of National Academy of Legal
Sciences of Ukraine, Kyiv, Ukraine. ORCID ID: http://orcid.org/0000-0003-4233-7173
** PhD in Law, Full Professor, Leading Scientic Researcher of the Scientic Laboratory of the Academician
F. H. Burchak Scientic-Research Institute of Private Law and Entrepreneurship of National Academy
of Legal Sciences of Ukraine, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-9209-0378
*** PhD in Law, Senior teacher of the Leonid Yuzkov Khmelnytskyi University of Management and Law,
Khmelnytskyi, Ukraine. ORCID ID: https://orcid.org/0000-0003-3348-1683
**** PhD in Law, Doctoral student of the Academician F. H. Burchak Scientic-Research Institute of Private
Law and Entrepreneurship of National Academy of Legal Sciences of Ukraine, Kyiv, Ukraine. ORCID
ID: http://orcid.org/0000-0003-0273-422X
***** PhD student, Junior Scientic Researcher of the Scientic Laboratory of the Academician
F. H. Burchak Scientic-Research Institute of Private Law and Entrepreneurship of National Academy
of Legal Sciences of Ukraine, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-1439-654X
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CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 160-177
Keywords: e-commerce agreements; development contracts;
international commercial arbitration; arbitration clause;
digital development.
Acuerdos de comercio, desarrollo digital y arbitraje
comercial internacional
Resumen
El objeto del artículo fue estudiar los problemas que surgen durante
la resolución de controversias en el orden del arbitraje comercial
internacional. El artículo utilizó métodos cientícos generales (dialéctica,
análisis y síntesis) y jurídicos especiales (jurídico comparado, lógico
formal, sistémico, hermenéutico, axiológico). En los resultados de la
investigación se estableció que los rasgos característicos de los contratos de
desarrollo electrónico en comercio internacional son: formas electrónicas
de celebración de la comunicación precontractual y contractual,
realizando modicaciones y adiciones al contrato. Teniendo en cuenta las
características que acompañan a la forma de contratación elegida prevalece
la necesidad de remitirse a lo dispuesto en la legislación aplicable en materia
de legislación scal y aduanera y protección de datos de carácter personal,
etc. En las conclusiones se fundamenta que los principales problemas de la
resolución de controversias derivadas de contratos de comercio electrónico,
en el arbitraje comercial internacional, son las cuestiones de requisitos y
validez de las cláusulas compromisorias contenidas en dichos contratos, la
importancia de los acuerdos alcanzados en la etapa precontractual en la
resolución posterior de disputas entre las partes y los problemas de prueba
que surgen sobre las peculiaridades de celebrar contratos relevantes.
Palabras clave: acuerdos de comercio electrónico; contratos de
desarrollo; arbitraje comercial internacional; cláusula
compromisoria; desarrollo digital.
Introduction
The formation and rapid development of electronic commerce in its
modern sense, consolidation of international principles and the regulatory
framework associated with its regulation, dated from the 90-s of the last
century (Gaitan, 2020), although the concept of e-commerce itself began to
penetrate into economic life in the 1970s (Wigand, 1997). At the beginning
of the 21st century, the main warnings to the commercial use of electronic
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resources in business were the lack of trust in the legally mandatory of
electronic contracts and the lack of trust in the security of electronic
communications in general (Gisler et al., 2000).
Nowadays, these business fears in the global sense have gone into the
past, giving place to the complex problems of establishing and executing
electronic contracts, as well as resolving disputes between foreign
counterparties over such contracts. Moreover, developing countries want
to get access to new technologies of international trade as soon as possible,
which will have a signicant impact on the global market (Teremetskyi et
al., 2021).
The retail electronic commerce market around the world has grown by
approximately $4.9 trillion in 2021. Forecasted, that this gure will grow
by 50% over the next four years and reach about $7.4 trillion by 2025
(Chevalier, 2022) in the background of coronavirus restrictions and safety
calls associated with the Russian Federation’s war in Ukraine. Thus, over the
last few decades, the digitalization of global economic life in general and the
way business transactions are arranged in international trade has reached
new heights and led to the creation of a new reality of public consumption
and distribution of goods, mediated and stimulated by electronic tools.
The globalization and diversication of the economy became closely
related to the above processes, along with digitalization, the construction of
complex international systems of production and distribution of products,
new logistical chains, marketing strategies and the very approach to
consumption in a digital epoch. According to J. Werner, the introduction
of the World Wide Web (WWW) has opened a new range of possibilities
for commercial operations - companies realized that potential customers
can no longer be contacted only at the enterprise, but also at home via the
Internet (Werner, 2000/2001).
It’s legitimate, that changes in the normative plane of regulation of the
basics and mechanisms of electronic commerce, protection of rights and
interests of counterparties (B2B contracts) and end consumers correspond
to this reality (B2C contracts).
Alternative ways of dispute resolution especially mediation (Bortnyk
et al., 2021) and international commercial arbitration occupy a leading
place in the system of international electronic commerce, which provide a
exible application to the digital realities of international economics both
because of their neutrality and condentiality and because of the ease of
implementation of virtual process tools in arbitration proceedings.
The concepts of electronic (Ononogbu, 2020) or virtual (Knowles
et al., 2021) arbitration have been discussed not in vain for a long time,
and the COVID-19 pandemic (Naón et al., 2020) was an additional step
in its development. Today arbitration is an established and eective
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way of resolving contractual and postcontractual disputes in developed
jurisdictions, such as Germany and Switzerland (Sviatoshniuk et al., 2021).
At the same time, new problems require additional research that
arise during the consideration and resolution of disputes in the order
of international commercial arbitration and directly emerge from the
peculiarities of the conclusion and execution of electronic development
contracts and international trade contracts. Study of the outlined problems
is the purpose of this scientic article.
1. Research Methodology
Scientic article is based on the use of general scientic and special legal
methods of scientic knowledge. Thus, the dialectic method allowed us
to establish the evolutionary nature of electronic commerce as a concept
that has experienced signicant changes over the past decades, aecting
the world economic relations as such an order of making and execution
of international trade and development agreements in particular.
Moreover, the appeal to the above method in this work enabled to trace the
development and current status of the resolution of disputes arising from
electronic contracts by means of the international commercial arbitration.
Methods of analysis and synthesis combined with the formal-logical
method allowed to establish the meaning of the concept of electronic
commerce in current law, as well as to identify the main approaches to the
normative consolidation of this category in international and national legal
acts. At the consideration of dierent legal approaches and traditions in the
article the comparative legal method is used.
The use of the systematic method enabled to dene the essence
of electronic commerce and electronic trade as complex, structured
phenomena of legal reality, the study of which requires taking into account
not only strictly legal aspects of the problems, but also taking into account
the nancial and economic side of the matter.
The method of legal hermeneutics was used to analyze the doctrinal
provisions and analytical works on the chosen subject, as well as the legal
sources and approaches, formed by arbitration practice in disputes related
to or arising from electronic transactions in the eld of international trade
and development. In the light of the latter aspect, it was useful to turn to the
functional and axiological methods, which allowed to establish the content
and value orientation of proceedings in the international commercial
arbitration in this concerned category of disputes, to dene the current
problems in the conclusion of arbitration clauses in electronic contracts in
the eld of international trade, and ways to solve them.
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Trade agreements, digital development and international commercial arbitration
2. Results and Discussion
2.1. Electronic Commerce: Concept and Peculiarities of Legal
Regulation
The concept of electronic commerce (e-commerce) is dened by
researchers as “the exchange of goods and services between (generally)
independent entities and/or persons, which is ensured by means of universal
use of powerful information and communication technology systems
(hereinafter - ICT) and globally standardized network infrastructure”
(Kütz, 2016: 20).
By a more extended denition, electronic commerce is dened as
promotional activities and publicity of goods and services, the establishment
and execution of a contract for appropriate business transactions, such as
the sale and purchase of goods and services, payment for purchases, and
everything that is done through various communication networks, whether
it be the Internet or other networks that connect the seller and the buyer
(Khudur et al., 2019). This approach points to the interpenetration of
business and ICT and the Internet as their key variety, as well as to the
integration of commercial transactions into a single electronic environment.
This forms the basis of today’s economy, when it is no longer possible
to distinguish between commercial and non-commercial parts of Internet
use, since the very functioning of the latter and some Web sites itself is
a business activity, and e-commerce has become a methodology, a way of
conducting modern business. Out there comes a broad understanding of
e-commerce as a business activity (which includes both communications
and transactions) that is carried out electronically and includes not only
orders, invoices and payments, but also marketing, advertising and
communications (Colecchia, 1998).
So, e-commerce is not only an individual type of commercial activity,
which is carried out in the global network Internet, but by a new method, a
way of doing business.
The relevant attitude is reected in the regulatory framework at the
level of international and national legal acts, recommendations and
concepts developed by international organizations. Thus, the World Trade
Organization considers electronic commerce very broadly as the production,
distribution, marketing, sale or delivery of goods and services by electronic
means (Work Programme on Electronic Commerce, 1998: WT/L/274).
Regarding the own normative denitions, we should note that not every
national legislator considers it necessary to give such a legal denition in
the strict sense. An analysis of the national legislation of the EU member
states, for example, shows that such a norm-denition is mostly absent.
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However, it is important that is declared in the preamble Directive
2000/31/EU of the European Parliament and Council of June 8, 2000
on certain legal aspects of information society services, in particular,
electronic commerce, in the domestic market (known as the “Directive
on Electronic Commerce”), the principle of legal regulation, according to
which, in order to ensure unhindered development of electronic commerce,
the legal framework must be clear and simple, predened and comply with
the rules, internationally applicable, so that it does not negatively aect the
competitiveness of European industry or hinder innovation in this sector
(Directive 2000/31/EC of the European Parliament and of the Council on
certain legal aspects of information society services, in particular electronic
commerce, in the Internal Market, 2000).
In accordance with this Directive, the national legislation of the EU
member states is tending to duplicate the key provisions, establishing the
denition of commercial communications, but not of electronic commerce
as such. This can be seen in the application of Art. 2(5) of the German
Telemedia Act, where, analogously to the European Directive, commercial
communications mean any form of communication, which serves as a direct
or indirect support for the sale of goods, services or the image of a company,
other organization or individual working in the eld of trade, commerce,
craft or professional services (Telemediengesetz, 2007).
The formal consolidation of the denitions of the concept of electronic
commerce is accepted by countries outside the EU, particularly, the India
Basic Goods and Services Tax Act of 2017 denes the analysed concept as
supplying goods or services or both, including digital products through
a digital or electronic network (The Central Goods and Services Tax Act,
2017).
However, the key characteristic of electronic commerce, which emerges
from the analysis of doctrinal and legal approaches, is the implementation
of commercial activities for the production, distribution, marketing, buying
and selling or supplying goods and services with the obligatory use of
modern means of electronic communications, regardless of their specic
type and form.
2.2. Content and Characteristics of Electronic Contracts in
International Trade and Development
Electronic commerce, as any business activity on a legal plane, is
mediated by the conclusion and execution of various types of contracts for
their subject matter (sale and purchase, supply, leasing, etc.), which in the
covered case, undoubtedly, are executed electronically in one of two ways:
by means of e-mail or a similar tool of electronic communication or through
“web-click” contracts using the web site’s order processing and payment
mechanism (Werner, 2000/2001).
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Almost the widest penetration of contracting with the help of these tools
has acquired in international trade, where electronic correspondence is
inherent mainly to B2B contracts, and “web-click” contracts mediate B2C
contracts, where one party is the end consumer of a product or service. In
the rst case, by means of electronic communication counterparties can be
located in dierent parts of the world, achieving the necessary economic
eciency of implementation of business activities while preserving the
legal legitimacy of transactions.
Today, traditional e-contracting tools are complemented by new
systems or accessories, specialized chats, etc. In particular, electronic
document management and document verication systems are widely
used in international business Get Accept, Adobe Sign, Zoho Docs, Logical
Doc, M-Files DMS, through which electronic transactions are increasingly
penetrating into international business.
The preservation of all the features is characteristic of electronic
contracts and in the eld of international trade and development, with the
addition of a few new features. In the rst place, the general rules of making
and executing contracts as such are applied to electronic contracts. In this
regard, the literature notes that although the situation with electronic
commerce does not always simplify the recognition of the elements of the
contract, concluded through the use of the Internet, all these elements must
be present in the formation of valid contracts, including the need for an
electronic oer and electronic acceptance, which must be notied to the
other party in an appropriate manner to declare them valid and such as to
generate legal consequences.
The same applies to the extension to electronic agreements of general
requirements for the legal capacity of the parties and the presence of a
valid intention to be bound by contractual obligations (Nuth, 2008; Argy
et al., 2001). In addition, the approach of identifying any electronic form of
transaction and/or communication of a commercial nature with the written
form has been universally accepted at the regulatory level.
In particular, the UNCITRAL Model Law on Electronic Commerce
establishes the principle of legal recognition of (“data message”) as
information created, 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. According to Article 5
of this Model Law, information cannot be denied legal force, validity or
capacity for purpose solely on the grounds that it exists in the form of data
notication (UNCITRAL Model Law on Electronic Commerce, 1996).
At the same time, on the plane of due process sending and taking the
notication by the party, both the oer or the acceptance, as well as already
the notication within the framework of the contract execution, that the
problems in the area of law enforcement and dispute resolution often lie.
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An additional problem, which, according to J. Hill, “puts the legitimacy
of XXI century methods of commercial contracting under consideration”
(Hill, 2003: 4) is that, in contrast to the cited Model Law UNCITRAL
and the approaches adopted by the national legislation of the developed
countries, the Convention of the United Nations Organization on Contracts
for the International Sale of Goods 1980 (the so-called Vienna Convention
or CISG) in Article 13 includes only telegrams and telexes within the scope
of the concept of written form (United Nations Convention on Contracts
for the International Sale of Goods, 1980), not to mention contracts related
to the use of computers, which are concluded through electronic data
interchange (EDI), via the Internet, electronic mail, click-wrap and shrink-
wrap contracts (Hill, 2003).
This problem deserves a thorough, self-sustaining research, but within
the framework of this scientic article it is worth mentioning the necessity
of supplementing Article 13 of the CISG by undeniable expansion of this list
by means of electronic and Internet communications. Moreover, this list
should be kept inexhaustible and apply an expansive interpretation of its
content.
According to the DCFR provisions, the electronic form of the contract
imposes additional requirements in terms of compliance with the proper
pre-contractual communication, which should minimize the lack of personal
contact between the parties and ensure full compliance of the reached
agreements with the recognition and internal will of the counterparties.
In addition to the actual electronic form of international trade contracts
as a feature, inherent in all electronic contracts and the additional
requirements that must be met before contractual obligations precede, by
binding to the proper communication of all contractual terms, legislation
and practice establish and other attributes.
Firstly, most of such characteristics emerge from the electronic form
of the contract in the sphere of international trade, requiring the parties
to reach agreeing on such aspects as the order and rules of storage of
notications and contractual information, mandatory recourse to the rules
of applicable law on the payment of VAT and other taxes and fees, personal
data protection and non-proliferation of condential information, etc.
(Recommendation No. 31, 2000).
Secondly, additional requirements to electronic signatures, which must
indicate the signing of the electronic contract, as well as such a request
as “non-repudiation”, i.e., nobody has the right to change the content of
the contract after it has been signed (Gisler et al., 2000), which must be
guaranteed by technical means by the same extent as the good faith of the
parties.
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Thirdly, talking about the sphere of international trade in the light
of the content of the relevant electronic contract, compliance with the
requirements of applicable law, including international acts, on the rights
and duties, distribution of responsibility between the parties. The essence
of the latter is to ensure a functional balance between freedom of contract,
freedom of business activities and autonomy of the will of the parties in
general and the imperative norms, which preserve and extend their eect
on international trade agreements entered into in electronic form.
The specicity of development agreements related to their subject and
the performance of business activities in the eld of real estate, at rst
glance, greatly limits the possibility of entering into such agreements in
electronic form. However, a reference to foreign experience, in particular
that of the United States and Canada, allows us to state that gradual
expansion of the scope of electronic communications as a way to conclude
and execute development contracts.
This is reected both in the standard development contracts developed
by some administrative units and in the contracts that are already in force.
For instance, the exemplary development contract for the city of Red Deer
in the Canadian province of Alberta in 2021 has a separate paragraph
concerning the electronic completion and execution of the contract,
according to which this agreement may be electronically concluded or
scanned or signed in another way electronically and delivered electronically,
and shall be deemed original and obligatory for the parties (City of Red
Deer Engineering Services, 2021).
At p. 7.23 of the Economic Development Agreement, to which the U.S.
state of Georgia isone of the parties, signed on May 2, 2022, expressly
states that this agreement may be signed simultaneously in any number of
instances and by electronic means (in particular by means of signatures in
PDF, DocuSign or exchange of signatures by other electronic means), each
of which shall be deemed an original, and no more than one such copy need
be provided or designated for conrmation of this Treaty (The State Of
Georgia, 2022). As we can see, the general logic and methods of electronic
conclusion, amendments and execution, validation of development
agreements follow the general trends of electronic commerce, and,
therefore, it also implies that they are subject to the relevant requirements
and rules.
It is with the outlined characteristics and peculiarities of electronic
contracts in the eld of international trade and development that cause the
arbitration practice low problems in the consideration and resolution of
relevant disputes.
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2.3. Specics of the settlement of disputes over electronic
trading and development agreements in international
commercial arbitration
Based on the application of the general principle of autonomy of
arbitration clause from the main contract and its validity, enactment and
compliance, the question arises regarding the admissibility and specics
of conclusion of arbitration clauses in international electronic commerce
contracts. It is legitimate that in this case the arbitration clause also exists
in electronic form.
Despite the fact that neither the New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (1958) nor the UNCITRAL
Model Law on International Commercial Arbitration (1985) in the context
of the term “written” conclusion of the arbitration agreement does not
follow the electronic form of its conclusion but only the one signed by the
parties or “contained in the exchange of letters or telegrams”, the world
arbitration practice does not consider itself restricted by these conservative
provisions. It is noted that, according to the current legislation, the means
of conrmation of agreement may be wider than those expressly managed
in the New York Convention (Aceris Law LLC, 2021).
This is conrmed in court practice, in particular in the decision in
Compagnie de Navigation et Transports SA v. MSC Mediterranean
Shipping Company SA, the Supreme Court of Switzerland broadly
explained the provisions of Article II (2) of the New York Convention,
stating that “the exchange of letters or telegrams” includes any other means
of communication (Federal Tribunal: 16.01.1995).
Also, the decision of the US District Court for the Southern District
of California substantiates the position that although e-mails and web
declarations are neither letters nor telegrams, the provision of the New
York Convention refers to e-mails by analogy: e-mails have the basic
characteristics of telegrams because they are not physically transmitted
and do not conrm the identity of the sender (US District Court for the
Southern District of California, 2000). At the same time, the admissibility
and prevalence of the conclusion of arbitration clauses in international
electronic commerce do not indicate that there are no controversial points
and issues to be addressed.
Thus, apart from the need for a proper indication of all the “traditional”
elements of an arbitration clause, such as the correct name of the arbitral
institution, the scope of disputes covered by the clause, the desired choice
of the applicable law, the number of arbitrators, the language and place of
arbitration proceeding, etc., the problems of authentication of parties and
verication of signatures, similar to electronic contracts themselves, are
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Volodymyr Nahnybida, Yurii Bilousov, Yaroslav Bliakharskyi, Ievgen Boiarskyi y Anatolii Ishchuk
Trade agreements, digital development and international commercial arbitration
crucial. Establishing these points directly aects the validity of an electronic
arbitration clause.
In general, in disputes involving transboundary transactions that do not
have a clear legal linking and a forum for conict resolution, arbitration
clause is extremely important. The presence of an arbitration clause in an
electronic contract can provide such a legal guarantee for both contracting
parties who face a legal problem during the implementation of such a
contract (Zamroni, 2019).
In this regard, in practice, it is recommended to ctionalize that a
party has the intention to abide by the terms of the contract as proof of its
conclusion, and among the ways to sign an arbitration clause in electronic
form are the following: (a) providing a scanned image of a handwritten
signature to be added to the electronic document; (b) recognizing the
name of the author at the end of the electronic mail notication; c) setting
a password to identify the sender to the provider; d) creation of a “digital
signature” by means of cryptography with a public key (Aceris Law LLC,
2021).
Additionally, it is eective to maintain electronic registers of international
trade agreements and arbitration clauses to them both by business entities
themselves and by legal companies, with the possibility to identify the date
and authenticate the signatures of the parties concluded with the data
contained in the relevant electronic record. Examination by the arbitral
tribunal of such means of recording and the information contained in them,
given their completeness and unambiguity, directly aects the decision on
the competence of arbitrators to consider the dispute and on the validity of
the arbitration clause.
Special attention should be paid to the issue of pre-contractual relations
of the parties to the electronic contract in the eld of international trade,
which for a number of reasons may aect the prospects of resolution of the
future dispute in the international commercial arbitration.
Firstly, often similar electronic contracts do not contain a provision
about the invalidity of all previous agreements between the parties before
the signing of the main contract. This can create diculties in assessing the
existing rights and obligations between the parties, specic obligations, as
well as aect the formation of their legal (lawful) expectations and interests.
These preliminary agreements often consist of a statement of intentions
of the parties to the future contract and enshrined in an electronic
correspondence via e-mail or specialized chat-letters, if the relationship is of
a long-term character, and between the parties already have a certain history
before the contract is signed. As a result, this situation signicantly aects
not only the legal aspects of the relationship between the counterparties,
but also has a psychological eect.
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On that basis, the problem is the issue of the scope of the arbitration
agreement concluded electronically in respect of such contract and
connected relations and disputes, those aspects which remain outside
the main electronic commercial contract, belonging to the sphere of pre-
contractual communication. In our view, what will be important in such a
case is the direct wording of the arbitration clause in the electronic contract:
whether its scope is restricted to “arising out of” the main contract or to
all “connected” relationships. In the latter case, of course, the arbitration
agreement will also deal with pre-contractual arrangements.
Otherwise, there may also be a problem of compliance of the content of
the nal electronic contract with the previous agreements of the parties.
Unscrupulous contractors in view of the electronic form of the contract
and even the possibility of unlawful unilateral changes in the latter may
abuse this circumstance and the very mechanism of contract conclusion. In
such a case in the arbitration process it is extremely important to prove the
facts of creation of an electronic record or xation of the contract terms in
the correspondence of the parties, as well as conrmation of the unilateral
change of the contract provisions using the same data of the electronic
document management systems.
It should also be taken into account that if the parties have reached
certain prior agreements that are not reected in the residual contract,
which, however, does not contain a rule about the invalidity of such
agreements and legal expectations of the party associated with them, the
other party may claim and argue during the arbitration proceedings, their
validity and imposing an obligation on the other party to fulll them. The
obligation to prove the agreements reached is usually incumbent upon
the party asserting the existence of such agreements and the obligations
corresponding thereto.
In general, the issue of proof in disputes arising from electronic contracts
of international commerce is a separate subject of scientic interest and
is closely linked to the above-mentioned toolkit of online arbitrage. A
new concept of electronically stored disclosure (e-disclosure) has even
been introduced into academic circulation, and nowadays, the volume of
requests by parties’ representatives for such disclosures and their approval
by the arbitral composition is only growing (Larkin et al., 2021).
These trends are reected in the new edition of the International
Bar Association (IBA) Rules on the Taking of Evidence in International
Arbitration (IBA Rules on The Taking of Evidence in International
Arbitration, 2020). These Rules dene a “document” as a written report,
communication, image, drawing, picture, program or data of any kind,
whether recorded or stored on paper or electronically, audio, visual or
otherwise, and also assumes that documents kept by a party in electronic
form are provided or made available in the form most convenient or
172
Volodymyr Nahnybida, Yurii Bilousov, Yaroslav Bliakharskyi, Ievgen Boiarskyi y Anatolii Ishchuk
Trade agreements, digital development and international commercial arbitration
economical for it and reasonably acceptable to the recipients (Art. 12(b) of
the IBA Rules).
The International Organization for Standardization (ISO), together with
the International Electrotechnical Commission, has also developed its own
Guidelines for identication, collection, acquisition and preservation of
digital evidence (Guidelines for identication, collection, acquisition and
preservation of digital evidence, 2012).
The Guidelines state that these processes are essential for investigation
to maintain the integrity of digital evidence - an acceptable methodology
for obtaining digital evidence, which will contribute to their acceptability
in legal and disciplinary proceedings, as well as in other necessary cases,
which, without fail, aect the arbitration proceedings. However, the
development of similar rules and guidelines regarding the collection,
receipt and submission of electronic evidence cannot solve all the problems
associated with proving in disputes on international commercial contracts
in international commercial arbitration.
In practice, there will be multidimensional problems of a technical and
legal nature relating to the proper access to such evidence, and the proof of
the proper degree of conrmation by means of certain circumstances of the
case or the parties’ agreements. Since the main importance of collecting all
possible evidence is to nd and prove a material fact, with the obligatory
consideration of the composition of the arbitration of the provisions of
the law governing the issues of evidence or the rules constituting the lex
loci arbitrii (Malacka, 2013). This is particularly dicult in the turbulent
context of the conclusion and performance of electronic contracts in
international trade, requiring a balanced consideration and assessment of
the admissibility and suciency of all electronic evidence.
Conclusions
Considering the results of the conducted research, we consider the fact
of establishment and eective functioning of a qualitatively new system of
current international commercial and trade activities, based on extensive
use of electronic communication means. At the same time, the latter have
become so important that they rightly claim to be a new methodology for
doing business on a global scale.
On the legal plane is reected, rst of all, in the concept of the electronic
contract, to the characteristic features of which in international trade we
propose to include the electronic form of the contract itself, the use of special
electronic signatures, as well as the implementation of pre-contractual and
contractual communication, technical specics of making changes and
173
CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 160-177
additions to the contract, taking into account the associated features of the
contract form when exchanging and saving notications and contract data,
the need to refer to the provisions of applicable law on tax and customs
legislation, protection of personal data and condential information, the
impossibility of unilateral changes to the electronic text of the contract after
it has been signed, and in the context of the content of the international
electronic trade contract, compliance with the requirements of applicable
law, including international acts, on the rights and obligations, distribution
of responsibility between the parties.
On the example of the countries of North America it is worth mentioning
the increasing spread of electronic methods of signing and executing
international contracts in the eld of development work, which at the same
time imposes on the latter some of the above requirements that are not
inconsistent with the object and purpose of development contracts.
In view of the subject matter of our research, we also found out that
certain manifestations of electronic commercial activities in the sphere of
international trade are also directly reected in the resolution of disputes by
international commercial arbitration. Among the most pressing problems
of resolving disputes on international electronic commercial contracts in
arbitration, we consider the requirements and validity of arbitration clauses,
which are contained in such contracts, the importance of the agreements
reached at the pre-contractual stage in the next settlement of disputes
between the parties, evidentiary problems, which directly derive from the
particularities of the conclusion and execution of the relevant contracts
and require recourse to the mechanisms of appropriate verication and
authentication of electronic data, which can and will be used as evidence in
the arbitration proceedings.
Bibliographic References
ACERIS LAW LLC. 2021. Electronic Arbitration Agreements: Admissibility
and Enforceability. Available online. In: https://www.acerislaw.com/
electronic-arbitration-agreements-admissibility-and-enforceability/.
Date of consultation: 17/07/2021.
ARGY, Philip; MARTIN, Nicholas. 2001. “The eective formation of contracts
by electronic means” In: Computers and Law. Vol. 46, pp. 20-23.
BORTNYK, Nadiya; TYLCHYK, Olha; LUKYANOVA, Galina; SKOCHYLIAS-
PAVLIV, Olha; REMENIAK, Olesia. 2021. “Principles of mediation as
an alternative way to protect human and citizen rights” In: Cuestiones
Políticas. Vol. 39, No. 70, pp. 238-249.
174
Volodymyr Nahnybida, Yurii Bilousov, Yaroslav Bliakharskyi, Ievgen Boiarskyi y Anatolii Ishchuk
Trade agreements, digital development and international commercial arbitration
BUNDESTAG. 2007. Telemedia Act (Telemediengesetz, TMG). Federal Law
Gazette I. Pp. 179. 26.02.2007.
CHEVALIER, Stephanie. 2022. Global retail e-commerce sales 2014–2025.
Available online. In: https://www.statista.com/statistics/379046/
worldwide-retail-e-commerce-sales/. Date of consultation: 19/03/2022.
CITY OF RED DEER ENGINEERING SERVICES. 2021. Development
Agreement. Available online. In: https://www.reddeer.ca/media/
reddeerca/city-services/engineering/publications/Development-
Agreement.pdf. Date of consultation: 17/07/2021.
COLECCHIA, Alessandra. 1998. Dening and measuring e-commerce.
Available online. In: https://www.oecd.org/digital/ieconomy/1893506.
pdf. Date of consultation: 19/07/2021.
EUROPEAN PARLIAMENT, COUNCIL OF THE EUROPEAN UNION. 2000.
Directive 2000/31/EC of the European Parliament and of the Council
on certain legal aspects of information society services, in particular
electronic commerce, in the Internal Market (“Directive on electronic
commerce”). Ocial Journal. L 178. 17.7.2000.
GAITAN, Loly; GROLLIER, Julien. 2020. Electronic Commerce in Trade
Agreements: Experience of Small Developing Countries. CUTS
International. Geneva, Geneva.
GISLER, Michael; STANOEVSKA-SLABEVA, Katarina; GREUNZ, Markus.
2000. Legal Aspects of Electronic Contracts. Procs. CAiSE’00
Workshop on Infrastructures for Dynamic Business-to-Business Service
Outsourcing. Stockholm, Sweden.
HILL, Jennifer. 2003. “The Future of Electronic Contracts in International
Sales: Gaps and Natural Remedies under the United Nations Convention
on Contracts for the International Sale of Goods” In: Northwestern
Journal of Technology and Intellectual Property. Vol. 2, No. 1, pp. 1-34.
INTERNATIONAL BAR ASSOCIATION. 2020. IBA Rules on the Taking of
Evidence in International Arbitration. Available online. In: https://www.
ibanet.org/MediaHandler?id=def0807b-9fec-43ef-b624-f2cb2af7cf7b.
Date of consultation: 17/07/2021.
INTERNATIONAL ORGANIZATION FOR STANDARDIZATION /
INTERNATIONAL ELECTROTECHNICAL COMMISSION. 2012.
Guidelines for identication, collection, acquisition and preservation of
digital evidence. ISO/IEC 27037:2012. 03.05.2012.
175
CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 160-177
KHUDUR, Hussein Riyadh; MUSLIM, Ali Abdulrazzaq; SAYHOD, Eyad
Mutshr. 2019. “Electronic Commerce: Legal Perspective (Comparative
Study)” In: International Journal of Innovation, Creativity and Change.
Vol. 8, No. 5, pp. 1-17.
KNOWLES, Ben; SZUNIEWICZ-WENZEL, Milena; WANG, Catherine. 2021.
The new norm: virtual arbitration. Available online. In: https://www.
clydeco.com/en/insights/2021/07/the-new-norm-virtual-arbitration.
Date of consultation: 17/07/2021.
KÜTZ, Martin. 2016. Introduction to E-Commerce: Combining Business
and Information Technology. Available online. In: https://irp-cdn.
multiscreensite.com/1c74f035/files/uploaded/introduction-to-e-
commerce.pdf. Date of consultation: 17/07/2021.
LARKIN, Kimberly; SHERMAN, Julia; RENEHAN, Kelly; PATEL, Anish.
2021. Using Technology and e-Disclosure. Available online. In:
https://globalarbitrationreview.com/guide/the-guide-evidence-in-
international-arbitration/1st-edition/article/using-technology-and-e-
disclosure. Date of consultation: 19/07/2022.
MALACKA, Michal. 2013. “Evidence in International Commercial Arbitration”
In: International and Comparative Law Review. Vol. 1, No. 13, pp. 97-
104.
NAÓN, Horacio Grigera; ARP, Björn. 2020. Virtual Arbitration in Viral Times:
The Impact of Covid-19 on the Practice of International Commercial
Arbitration. Available online. In: https://www.wcl.american.edu/
impact/initiatives-programs/international/news/virtual-arbitration-
in-viral-times-the-impact-of-covid-19-on-the-practice-of-international-
commercial-arbitration/. Date of consultation: 17/07/2021.
NUTH, Maryke Silalahi. 2008. Electronic Contracting in Europe:
Benchmarking of National Contract Rules of United Kingdom, Germany,
Italy and Norway in Light of the EU E-Commerce Directive. Senter for
Rettsinformatikk.
ONONOGBU, Ijeoma. 2020. The emergence of e-mediation and e-arbitration.
Available online. In: https://blog.jusmundi.com/the-emergence-of-e-
mediation-and-e-arbitration/. Date of consultation: 17/07/2021.
PARLIAMENT OF INDIA. 2017. The Central Goods and Services Tax Act. The
Gazette of India. № 12.
SVIATOSHNIUK, Serhii; BAKALO, Liliia; BILOSTOTSKYI, Oleg; GUT, Serhii;
CHAIKOVSKYI, Oleg; ZAIETS, Oleksandr. 2021. “Legal Mechanisms
for Protection of the Rights of Participants in Contractual and Non-
176
Volodymyr Nahnybida, Yurii Bilousov, Yaroslav Bliakharskyi, Ievgen Boiarskyi y Anatolii Ishchuk
Trade agreements, digital development and international commercial arbitration
Contractual Legal Relations” In: Cuestiones Políticas. Vol. 39, No. 71,
pp. 147-165.
SWITZERLAND FEDERAL TRIBUNAL. 1995. Compagnie de Navigation et
Transports SA v. MSC Mediterranean Shipping Company SA. BGE 121
III, 38, 44.
TEREMETSKYI, Vladyslav; DULIBA, Yevgenia. 2021. “Role of the WTO in
Regulating Worldtrade in Medicinal Products and Equipment During
the COVID-19 Pandemic” In: Law and Safety. Vol. 76, No. 1, pp. 146-152.
THE STATE OF GEORGIA. 2022. Economic Development Agreement. Available
online. In: https://www.georgia.org/sites/default/les/2022-05/jda-
rivian_ _economic_development_agreement.pdf. Date of consultation:
18/07/2022.
UNITED NATIONS CENTRE FOR TRADE FACILITATION AND
ELECTRONIC BUSINESS (UN/CEFACT). 2000. Recommendation
No. 31. Electronic Commerce Agreement. ECE/TRADE/257. 05.2000.
UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW.
1985. UNCITRAL Model Law on International Commercial Arbitration
(with amendments as adopted in 2006). Available online. In: https://
www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_
Ebook.pdf. Date of consultation: 17/07/2021.
UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW.
1996. UNCITRAL Model Law on Electronic Commerce with Guide to
Enactment 1996 with additional article 5 bis as adopted in 1998. Available
online. In: https://uncitral.un.org/sites/uncitral.un.org/les/media-
documents/uncitral/en/19-04970_ebook.pdf. Date of consultation:
17/07/2021.
UNITED NATIONS ORGANIZATION. 1958. United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral Awards.
10.06.1958. Available online. In: https://www.uncitral.org/pdf/english/
texts/arbitration/NY-conv/New-York-Convention-E.pdf. Date of
consultation: 19/07/2021.
UNITED NATIONS ORGANIZATION. 1980. United Nations Convention
on Contracts for the International Sale of Goods. Available online. In:
https://uncitral.un.org/sites/uncitral.un.org/les/media-documents/
uncitral/en/19-09951_e_ebook.pdf. Date of consultation: 18/07/2021.
US DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA.
2000. Chloe Z Fishing Co., Inc. v. Odyssey Re (London) Ltd., 109 F.
Supp. 2d 1236, 1250 (S.D. Cal. 2000). Available online. In: https://law.
177
CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 160-177
justia.com/cases/federal/district-courts/FSupp2/109/1236/2522927/.
Date of consultation: 19/07/2021.
WERNER, Jens. 2000/2001. E-Commerce.co.uk. – Local Rules in a Global
Net. In: International Journal of Communications Law and Policy. 6.
Pp. 1-10.
WIGAND, Rolf. 1997. “Electronic Commerce: Denition, Theory, and Context”
In: The Information Society. Vol. 13, No. 1, pp. 1-16.
WORLD TRADE ORGANIZATION. 1998. Work Programmed on Electronic
Commerce. WT/L/274.
ZAMRONI, Mohammad. 2019. The Urgency of Arbitration Clause in
International Trade Contract of Electronic Transaction. Advances in
Social Science, Education and Humanities Research. No. 14, pp. 49-53.
www.luz.edu.ve
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Esta revista fue editada en formato digital y publicada
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Vol.40 Nº 74