Submitted by Jonny Rubin Byahuranga (represented by counsel, Mr. Tyge Trier)

Even if the parties were satisfied at the outset as to the reliability of the signature method, a court or trier of fact may rule otherwise.

Although parties can exercise party autonomy by agreeing on a signature method, it remains that the parties' agreement is only one of the factors in paragraph 3 (b) of article 9 taken into consideration by the court or trier of fact.

(a) It will create uncertainty in electronic transactions because whether a signature method is appropriately reliable and hence not be denied legal validity will be determined ex post by the court or trier of fact, and not ex ante by the parties.

If a particular conclusion of fact is one that is reasonably available to a trier of fact on the basis of the evidence before it, ipso facto a showing of manifest arbitrariness or a denial of justice will not have been made out.

In the Guide to Enactment of the UNCITRAL Model Law on Electronic Signatures 2001, it was already noted that article 7 of the UNCITRAL Model Law on Electronic Commerce creates uncertainty as the determination of appropriately sufficient reliability can only be made ex post by a court or other trier of fact.

However, under article 7 of the UNCITRAL Model Law on Electronic Commerce, the determination of what constitutes a reliable method of signature in the light of the circumstances, can be made only by a court or other trier of fact intervening ex post, possibly long after the electronic signature has been used.

This means that the parties to the electronic communication or contract are not able to know with certainty ex ante whether the electronic signature used will be upheld by a court or other trier of fact as appropriately reliable and therefore not be denied legal validity, until after a legal dispute arises subsequently.

Under paragraph 3 (b) of article 9, the satisfaction by an electronic signature of a requirement of law for signature depends on whether the signature method was appropriately reliable for the purpose of the electronic communication in light of all the circumstances, as determined ex post by a court or other trier of fact.

It also means that even if there was no dispute about the identity of the person signing or the fact of signing (i.e. no dispute as to authenticity of the electronic signature), a court or trier of fact may still rule that the electronic signature was not appropriately reliable, and therefore invalidate the entire contract.

Draft paragraph 3 (b) required the determination of sufficient reliability to be made ex post by a court or other trier of fact, which meant that when two parties to a contract entered into a transaction, they had no idea whether that transaction would eventually be upheld, a state of affairs that was counterproductive and could constitute an impediment to electronic commerce.