Luis Burgueño - E-Commerce and the Law of Digital Signatures
Citation: Luis Burgueño Colín: Mexico (Chapter 16) in E-Commerce and the Law of Digital Signatures, Center for International Legal Studies, Salzburg (Oxford University Press 2005), pp. 449-80.
The ongoing e-commerce revolution that only began in the last quarter of the twentieth century has challenged the legal systems of all countries of the world by posing new questions and problems that cannot be easily solved by reference to the traditional legal frameworks.
In the particular case of Mexico, a civil law country where contract law is fundamentally governed by enacted statutes of law, and where the role of jurisprudence is basically limited to the interpretation of the law and thus has virtually no influence in the creation and evolution thereof, this challenge translates into a multiple quest: First, it becomes necessary to amend the legal codes that govern contract formation, validity and other aspects of contract law, which codes were enacted more than seventy years ago . At the same time, however, it is necessary to ensure that any laws enacted on the subject matter of e-commerce preserve some degree of flexibility to accommodate the possibility of carrying out commercial transactions by new means of communication that, as the recent history of telecommunications and information technologies indisputably proves, will most likely emerge taking legislators, judges and lawyers by surprise.
In light of this, the 1996 UNCITRAL Model Law on Electronic Contracts (the “1996 E-Commerce Model Law”) and 2001 UNCITRAL Model Law on Electronic Signatures (the “2001 E-Signatures Model Law") have proven to be very useful for lawmakers worldwide, in that they offer a solutions system to resolve the new problems posed by e-commerce, which is modern and forward looking, but that, by involving the participation of experts from all legal system traditions and most of the countries of the world, represents an unparalleled compilation of legal knowledge and experience.
Mexico has traditionally been an enthusiastic adopter of the UNCITRAL sponsored model laws and international treaties. Mexico was one of the early adopters of the 1996 E-Commerce Model Law and particularly of the 2001 E-Signatures Model Law .
On May 29, 2000, several provisions of the Federal Civil Code, Code of Commerce, Federal Civil Procedure Code and Federal Consumer Protection Act were amended in order to legally recognize the validity and enforceability of contracts executed by electronic means, i.e., by the exchange of data messages and the admissibility of data messages as evidence. These set of amendments (hereinafter referred to as the “2000 E-Commerce Decree”) incorporated only some of the basic principles of the 1996 E-Commerce Model Law, but still constituted a significant step towards full recognition of Data Messages and Electronic Signatures, since they established the possibility of forming legally binding and enforceable contracts by electronic means.
On August 29, 2003 the Code of Commerce was amended again to regulate electronic signatures and also to incorporate many provisions of the 1996 E-Commerce Model Law that had been left out of the 2000 E-Commerce Decree. In the matter of electronic signatures, this second set of amendments to the Code of Commerce (hereinafter referred to as the “2003 E-Signatures Decree”) substantially follows the guidelines of the 2001 E-Signatures Model Law , with some significant additions regarding the regulation of Certification Service Providers.
This chapter presents Mexico’s legal regime on electronic contracting and signatures, as has been established pursuant to the 2000 E-Commerce Decree and the 2003 E-Signatures Decree, and the manner in which the provisions of the UNCITRAL E-Commerce and E-Signatures Model Laws have been implemented. Also, bearing in mind the current works of the UNCITRAL Working Group IV (Electronic Commerce) on a Draft Convention on the Use of Electronic Communications in International Contracts (the “Draft Convention”), this Chapter also refers to some of the most significant differences between Mexican Law on e-contracts and e-signatures and the Draft Convention