United Nations Convention on the Use of Electronic Communications in International Contracts 联合国国际合同使用电子通信公约 《联合国国际合同使用电子通信公约》 (United Nations Convention on the Use of Electronic Communications in InternationUnited Nations Convention on the Use of Electronic
Communications in International Contracts
《联合国国际合同使用电子通信公约》 (United Nations Convention on the Use of Electronic Communications in International Contracts) 于2005年11月23日经联合国贸易法委员会第三十八届会议通过。该公约共四章25条，第一章适用范围(适用范围，不适用情形，当事人意思自治)，第二章总则（定义，解释，当事人的所在地，对提供情况的要求），第三章国际合同使用电子通信（对电子通信的法律承认，形式要求，发出和收到电子通信的时间和地点，要约邀请，自动电文系统在合同订立中的使用，合同条款的备查，电子通信中的错误），第四章最后条款（保存人，签署、批准、接受或认可，区域经济一体化组织的参与，对本国领土单位的效力，关于适用范围的声明，根据其他国际公约进行的通信往来，声明的程序和效力，保留，生效，适用时间，退约）。公约的宗旨是在对国际合同使用电子通信的情形中增强法律确定性和商业可预见性。该公约处理的国际合同使用电子通信问题包括如何确定一方当事人在电子环境中的所在地；电子通信的收发时间和地点；使用自动信息系统订立合同；以及确立电子通信和纸面文件（包括“原始”纸面文件）以及电子认证方法和手写签名功能上等同所使用的标准。
The States Parties to this Convention, Reaffirming their belief that international trade on the basis of equality and mutual benefit is an important element in promoting friendly relations among States, Noting that the increased use of electronic communications improves the efficiency of commercial activities, enhances trade connections and allows new access opportunities for previously remote parties and markets, thus playing a fundamental role in promoting trade and economic development, both domestically and internationally, Considering that problems created by uncertainty as to the legal value of the use of electronic communications in international contracts constitute an obstacle to international trade, Convinced that the adoption of uniform rules 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, would enhance legal certainty and commercial predictability for international contracts and help States gain access to modern trade routes, Being of the opinion that uniform rules should respect the freedom of parties to choose appropriate media and technologies, taking account of the principles of technological neutrality and functional equivalence, to the extent that the means chosen by the parties comply with the purpose of the relevant rules of law, Desiring to provide a common solution to remove legal obstacles to the use of electronic communications in a manner acceptable to States with different legal, social and economic systems, Have agreed as follows:
CHAPTER I. SPHERE OF APPLICATION 第一章 适用范围
Article 1. Scope of application 第一条 适用范围
1. This 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.
2. The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between the parties or from information disclosed by the parties at any time before or at the conclusion of the contract.
3. Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention.
Article 2. Exclusions 第二条 不适用情形
1. This Convention does not apply to electronic communications relating to any of the following:
(a) Contracts concluded for personal, family or household purposes;
(b) (i) Transactions on a regulated exchange; (ii) foreign exchange transactions; (iii) inter-bank payment systems, inter-bank payment agreements or clearance and settlement systems relating to securities or other financial assets or instruments; (iv) the transfer of security rights in sale, loan or holding of or agreement to repurchase securities or other financial assets or instruments held with an intermediary.
㈡1.受管制交易所的交易； 2.外汇交易； 3.银行间支付系统、银行间支付协议或者与证券或其他金融资产或票据有关的清算和结算系统； 4.对中间人持有的证券或其他金融资产或票据的担保权的转让、出售、出借或持有或回购协议。
2. This Convention does not apply to bills of exchange, promissory notes, consignment notes, bills of lading, warehouse receipts or any transferable document or instrument that entitles the bearer or beneficiary to claim the delivery of goods or the payment of a sum of money.
Article 3. Party autonomy 第三条 当事人意思自治
The parties may exclude the application of this Convention or derogate from or vary the effect of any of its provisions.
CHAPTER II. GENERAL PROVISIONS第二章 总则
Article 4. Definitions 第四条 定义
For the purposes of this Convention: 在本公约中：
(a) “Communication” means any statement, declaration, demand, notice or request, including an offer and the acceptance of an offer, that the parties are required to make or choose to make in connection with the formation or performance of a contract;
(b) “Electronic communication” means any communication that the parties make by means of data messages;
(c) “Data message” means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange, electronic mail, telegram, telex or telecopy;
(d) “Originator” of an electronic communication means a party by whom, or on whose behalf, the electronic communication has been sent or generated prior to storage, if any, but it does not include a party acting as an intermediary with respect to that electronic communication;
(e) “Addressee” of an electronic communication means a party who is intended by the originator to receive the electronic communication, but does not include a party acting as an intermediary with respect to that electronic communication;
(f) “Information system” means a system for generating, sending, receiving, storing or otherwise processing data messages;
(g) “Automated message system” means a computer program or an electronic or other automated means used to initiate an action or respond to data messages or performances in whole or in part, without review or intervention by a natural person each time an action is initiated or a response is generated by the system;
(h) “Place of business” means any place where a party maintains a non-transitory establishment to pursue an economic activity other than the temporary provision of goods or services out of a specific location.
Article 5. Interpretation 第五条 解释
1. In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.
2. Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.
Article 6. Location of the parties 第六条 当事人的所在地
1. For the purposes of this Convention, a party’s place of business is presumed to be the location indicated by that party, unless another party demonstrates that the party making the indication does not have a place of business at that location.
2. If a party has not indicated a place of business and has more than one place of business, then the place of business for the purposes of this Convention is that which has the closest relationship to the relevant contract, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract.
3. If a natural person does not have a place of business, reference is to be made to the person’s habitual residence.
4. A location is not a place of business merely because that is: (a) where equipment and technology supporting an information system used by a party in connection with the formation of a contract are located; or (b) where the information system may be accessed by other parties.
5. The sole fact that a party makes use of a domain name or electronic mail address connected to a specific country does not create a presumption that its place of business is located in that country.
Article 7. Information requirements 第七条 对提供情况的要求
Nothing in this Convention affects the application of any rule of law that may require the parties to disclose their identities, places of business or other information, or relieves a party from the legal consequences of making inaccurate, incomplete or false statements in that regard.
CHAPTER III. USE OF ELECTRONIC COMMUNICATIONS IN INTERNATIONAL CONTRACTS
Article 8. Legal recognition of electronic communications第八条 对电子通信的法律承认
1. A communication or a contract shall not be denied validity or enforceability on the sole ground that it is in the form of an electronic communication.
2. Nothing in this Convention requires a party to use or accept electronic communications, but a party’s agreement to do so may be inferred from the party’s conduct.
Article 9. Form requirements 第九条 形式要求
1. Nothing in this Convention requires a communication or a contract to be made or evidenced in any particular form.
2. Where the law requires that a communication or a contract should be in writing, or provides consequences for the absence of a writing, that requirement is met by an electronic communication if the information contained therein is accessible so as to be usable for subsequent reference.
3. Where the law requires that a communication or a contract should be signed by a party, or provides consequences for the absence of a signature, that requirement is met in relation to an electronic communication if:
(a) A method is used to identify the party and to indicate that party’s intention in respect of the information contained in the electronic communication; and
(b) The method used is either: (i) As reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or (ii) Proven in fact to have fulfilled the functions described in subparagraph (a) above, by itself or together with further evidence.
4. Where the law requires that a communication or a contract should be made available or retained in its original form, or provides consequences for the absence of an original, that requirement is met in relation to an electronic communication if:
(a) There exists a reliable assurance as to the integrity of the information it contains from the time when it was first generated in its final form, as an electronic communication or otherwise; and
(b) Where it is required that the information it contains be made available, that information is capable of being displayed to the person to whom it is to be made available.
5. For the purposes of paragraph 4 (a): 五、在第四款第㈠项中：
(a) The criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from the addition of any endorsement and any change that arises in the normal course of communication, storage and display; and
(b) The standard of reliability required shall be assessed in the light of the purpose for which the information was generated and in the light of all the relevant circumstances.
Article 10. Time and place of dispatch and receipt of electronic communications
1. The time of dispatch of an electronic communication is the time when it leaves an information system under the control of the originator or of the party who sent it on behalf of the originator or, if the electronic communication has not left an information system under the control of the originator or of the party who sent it on behalf of the originator, the time when the electronic communication is received.
2. The time of receipt of an electronic communication is the time when it becomes capable of being retrieved by the addressee at an electronic address designated by the addressee. The time of receipt of an electronic communication at another electronic address of the addressee is the time when it becomes capable of being retrieved by the addressee at that address and the addressee becomes aware that the electronic communication has been sent to that address. An electronic communication is presumed to be capable of being retrieved by the addressee when it reaches the addressee’s electronic address.
3. An electronic communication is deemed to be dispatched at the place where the originator has its place of business and is deemed to be received at the place where the addressee has its place of business, as determined in accordance with article 6.
4. Paragraph 2 of this article applies notwithstanding that the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is deemed to be received under paragraph 3 of this article.
Article 11. Invitations to make offers 第十一条 要约邀请
A proposal to conclude a contract made through one or more electronic communications which is not addressed to one or more specific parties, but is generally accessible to parties making use of information systems, including proposals that make use of interactive applications for the placement of orders through such information systems, is to be considered as an invitationto make offers, unless it clearly indicates the intention of the party making the proposal to be bound in case of acceptance.
Article 12. Use of automated message systems for contract formation
A contract formed by the interaction of an automated message system and a natural person, or by the interaction of automated message systems, shall not be denied validity or enforceability on the sole ground that non atural person reviewed or intervened in each of the individual actions carried out by the automated message systems or the resulting contract.
Article 13. Availability of contract terms 第十三条 合同条款的备查
Nothing in this Convention affects the application of any rule of law that may require a party that negotiates some or all of the terms of a contract through the exchange of electronic communications to make available to the other party those electronic communications which contain the contractual terms in a particular manner, or relieves a party from the legal consequences of its failure to do so.
Article 14. Error in electronic communications 第十四条 电子通信中的错误
1. Where a natural person makes an input error in an electronic communication exchanged with the automated message system of another party and the automated message system does not provide the person with an opportunity to correct the error, that person, or the party on whose behalf that person was acting, has the right to withdraw the portion of the electronic communication in which the input error was made if:
(a) The person, or the party on whose behalf that person was acting, notifies the other party of the error as soon as possible after having learned of the error and indicates that he or she made an error in the electronic communication; and
(b) The person, or the party on whose behalf that person was acting, has not used or received any material benefit or value from the goods or services, if any, received from the other party.
2. Nothing in this article affects the application of any rule of law that may govern the consequences of any error other than as provided for in paragraph 1.
CHAPTER IV. FINAL PROVISIONS第四章 最后条款
Article 15. Depositary第十五条 保存人
The Secretary-General of the United Nations is hereby designated as the depositary for this Convention.
Article 16. Signature, ratification, acceptance or approval第十六条 签署、批准、接受或认可
1. This Convention is open for signature by all States at United Nations Headquarters in New York from 16 January 2006 to 16 January 2008.
2. This Convention is subject to ratification, acceptance or approval by the signatory States.
3. This Convention is open for accession by all States that are not signatory States as from the date it is open for signature.
4. Instruments of ratification, acceptance, approval and accession are to be deposited with the Secretary-General of the United Nations.
Article 17. Participation by regional economic integration organizations
1. A regional economic integration organization that is constituted by sovereign States and has competence over certain matters governed by this Convention may similarly sign, ratify, accept, approve or accede to this Convention. The regional economic integration organization shall in that case have the rights and obligations of a Contracting State, to the extent that that organization has competence over matters governed by this Convention. Where the number of Contracting States is relevant in this Convention, the regional economic integration organization shall not count as a Contracting State in addition to its member States that are Contracting States.
2. The regional economic integration organization shall, at the time of signature, ratification, acceptance, approval or accession, make a declaration to the depositary specifying the matters governed by this Convention in respect of which competence has been transferred to that organization by its member States. The regional economic integration organization shall promptly notify the depositary of any changes to the distribution of competence, including new transfers of competence, specified in the declaration under this paragraph.
3. Any reference to a “Contracting State” or “Contracting States” in this Convention applies equally to a regional economic integration organization where the context so requires.
4. This Convention shall not prevail over any conflicting rules of any regional economic integration organization as applicable to parties whose respective places of business are located in States members of any such organization, as set out by declaration made in accordance with article 21.
Article 18. Effect in domestic territorial units 第十八条 对本国领土单位的效力
1. If a Contracting State has two or more territorial units in which different systems of law are applicable in relation to the matters dealt with in this Convention, it may, at the time of signature, ratification, acceptance, approval or accession, declare that this Convention is to extend to all its territorial units or only to one or more of them, and may amend its declaration by submitting another declaration at any time.
2. These declarations are to be notified to the depositary and are to state expressly the territorial units to which the Convention extends.
3. If, by virtue of a declaration under this article, this Convention extends to one or more but not all of the territorial units of a Contracting State, and if the place of business of a party is located in that State, this place of business, for the purposes of this Convention, is considered not to be in a Contracting State, unless it is in a territorial unit to which the Convention extends.
4. If a Contracting State makes no declaration under paragraph 1 of this article, the Convention is to extend to all territorial units of that State.
Article 19. Declarations on the scope of application 第十九条 关于适用范围的声明
1. Any Contracting State may declare, in accordance with article 21, that it will apply this Convention only:(a) When the States referred to in article 1, paragraph 1, are Contracting States to this Convention; or (b) When the parties have agreed that it applies.
2. Any Contracting State may exclude from the scope of application of this Convention the matters it specifies in a declaration made in accordance with article 21.
Article 20. Communications exchanged under other international conventions
1. The provisions of this Convention apply to the use of electronic communications in connection with the formation or performance of a contract to which any of the following international conventions, to which a Contracting State to this Convention is or may become a Contracting State, apply: Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958); Convention on the Limitation Period in the International Sale of Goods (New York, 14 June 1974) and Protocol thereto (Vienna, 11 April 1980); United Nations Convention on Contracts for the International Sale of Goods (Vienna, 11 April 1980); United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (Vienna, 19 April 1991); United Nations Convention on Independent Guarantees and Stand-by Letters of Credit (New York, 11 December 1995); United Nations Convention on the Assignment of Receivables in International Trade (New York, 12 December 2001).
一、本公约的规定适用于与订立或履行本公约缔约国已加入或可能加入的下列任何国际公约所适用的合同有关的电子通信的使用： 《承认及执行外国仲裁裁决公约》（1958年6月10日，纽约）； 国际货物销售时效期限公约》（1974年6月14日，纽约）及其议定书（1980年4月11日，维也纳）； 《联合国国际货物销售合同公约》（1980年4月11日，维也纳）； 《联合国国际贸易运输港站经营人赔偿责任公约》（1991年4月19日，维也纳）； 《联合国独立担保和备用信用证公约》（1995年12月11日，纽约）； 《联合国国际贸易应收款转让公约》（2001年12月12日，纽约）。
2. The provisions of this Convention apply further to electronic communications in connection with the formation or performance of a contract to which another international convention, treaty or agreement not specifically referred to in paragraph 1 of this article, and to which a Contracting State to this Convention is or may become a Contracting State, applies, unless the State has declared, in accordance with article 21, that it will not be bound by this paragraph.
3. A State that makes a declaration pursuant to paragraph 2 of this article may also declare that it will nevertheless apply the provisions of this Convention to the use of electronic communications in connection with the formation or performance of any contract to which a specified international convention, treaty or agreement applies to which the State is or may become a Contracting State.
4. Any State may declare that it will not apply the provisions of this Convention to the use of electronic communications in connection with the formation or performance of a contract to which any international convention, treaty or agreement specified in that State’s declaration, to which the State is or may become a Contracting State, applies, including any of the conventions referred to in paragraph 1 of this article, even if such State has not excluded the application of paragraph 2 of this article by a declaration made in accordance with article 21.
Article 21. Procedure and effects of declarations第二十一条 声明的程序和效力
1. Declarations under article 17, paragraph 4, article 19, paragraphs 1and 2, and article 20, paragraphs 2, 3 and 4, may be made at any time.Declarations made at the time of signature are subject to confirmation upon ratification, acceptance or approval.
2. Declarations and their confirmations are to be in writing and to be formally notified to the depositary.
3. A declaration takes effect simultaneously with the entry into force of this Convention in respect of the State concerned. However, a declaration of which the depositary receives formal notification after such entry into force takes effect on the first day of the month following the expiration of six months after the date of its receipt by the depositary.
4. Any State that makes a declaration under this Convention may modify or withdraw it at any time by a formal notification in writing addressed to the depositary. The modification or withdrawal is to take effect on the first day of the month following the expiration of six months after the date of the receipt of the notification by the depositary.
Article 22. Reservations第二十二条 保留
No reservations may be made under this Convention. 不得对本公约提出保留。
Article 23. Entry into force第二十三条 生效
1. This Convention enters into force on the first day of the month following the expiration of six months after the date of deposit of the third instrument of ratification, acceptance, approval or accession.
2. When a State ratifies, accepts, approves or accedes to this Convention after the deposit of the third instrument of ratification, acceptance, approval or accession, this Convention enters into force in respect of that State on the first day of the month following the expiration of six months after the date of the deposit of its instrument of ratification, acceptance, approval or accession.
Article 24. Time of application第二十四条 适用时间
This Convention and any declaration apply only to electronic communications that are made after the date when the Convention or the declaration enters into force or takes effect in respect of each Contracting State.
Article 25. Denunciations 第二十五条 退约
1. A Contracting State may denounce this Convention by a formal notification in writing addressed to the depositary.
2. The denunciation takes effect on the first day of the month following the expiration of twelve months after the notification is received by the depositary. Where a longer period for the denunciation to take effect is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary. DONE at New York this twenty-third day of November two thousand and five, in a single original, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized by their respective Governments, have signed this Convention.United Nations Convention on the Use of Electronic Communications in International Contracts