4. Comparative Analysis

International Instruments

The United Nations Convention on the Use of Electronic Communications in International Contracts has been identified as a key international instrument that will guide the drafting of electronic signature regulations. The Convention builds upon two earlier instruments drafted by the United Nations Commission on International Trade Law (UNCITRAL), namely the Model Law on Electronic Commerce and the Model Law on Electronic Signatures.

The Model Law on Electronic Commerce was drafted to establish rules for and create a legal environment for electronic commerce. Article 7 of the law specifically addresses electronic signatures. It deals with the functions of and the binding nature of electronic signatures. It seeks to remove real or perceived barriers to the use of digital signatures. It generally has a technology neutral approach, focusing on functional equivalency. Several years after the Model Law on Electronic Commerce was drafted, the Model Law on Electronic Signatures was approved. The Model Law on Electronic Signatures was developed as an improvement on the Model Law on Electronic Commerce, in relation to electronic signatures. This Model Law dealt more specifically with certification processes, including the emergence of new technology, and set out specific provisions dealing with issues such as the allocation of risks and liabilities and the use of registries, amongst others. The Model Law on Electronic Signatures also addressed public key infrastructures (PKIs) and many security issues relevant to certification service providers.

Foreign Jurisdictions

The consultancy team plans to review the laws and regulations of the East African Community (EAC) and Common Market for Eastern and Southern Africa (COMESA) Partner States to ascertain how they have dealt with the regulatory issues surrounding electronic signatures. The team hopes to learn lessons based on what other domestic jurisdictions have done.

Comparative Analysis Questions

1. Based on your experience, can you identify any other international agreements or guidelines that are or will be necessary or useful for the consultancy team to consider?

2. Based on your experience, can you identify best regulatory practices from other jurisdictions and the particularly relevant lessons of which the team should be aware?