ELECTRONIC AGREEMENTS IN CARACAO AND SINT MAARTEN

The Dutch Caribbean digital signature exists for over 10 years

The Curacao Ordinance on Electronic Agreements a.k.a. the Curacao Ordinance on agreements concluded electronically (Landsverordening overeenkomsten langs elektronische weg) became effective on 1 January 2001. The Ordinance in St. Maarten is similar to the one in Curacao.

The Ordinance provides that an electronic signature shall have the same legal effect as a hand-written signature, and may be admitted as evidence in legal proceedings. An electronic signature is described as electronic data which are attached to or have a logical association with other electronic data and are used as a tool for authentication. This recognition also extends to certain certificates and certification providers (Trusted Third Parties).

Strictly speaking, a digital signature is also a type of electronic signature. In practice, scanned signatures and biometric identification methods, such as scanned irises and fingerprints, also belong to the realm of electronic signatures. The Ordinance assumes a broad concept for electronic signatures.

The Ordinance is applicable on commercial communication. Commercial communication is all forms of offering and recommending goods and services, businesses and persons, among which advertising and direct marketing by electronic means from, or aimed at Curacao, directly or indirectly aimed at bringing about agreements. According to the Ordinance, agreements can be concluded by electronic means.

Electronic means is described as the transmission or storage of data, which are converted for this purpose into a series of electronic, radio-electric, electromagnetic, or optical signals. This includes for instance the fax, e-mail and the Internet. Given the broad concept for electronic means, it may well be that a CD/DVD would also fall within the scope of this definition, although there is no case law establishing this to be the case.

For the conclusion of an agreement by electronic means it is required that the issuer of commercial communication (i.e. the party offering services or goods by electronic means) receives the other party’s acceptance of the offer. An offer made by electronic means can also be accepted by the other party in writing. Nevertheless, it concerns an agreement concluded by electronic means, and it therefore falls within the scope of the Ordinance. Of relevance is thus whether the offer was (partially) made by electronic means.

This Ordinance not only provides for how electronic agreements can be concluded, but also prescribes restrictions on commercial communication through electronic channels which is initiated from, or intended for, Curacao and which aims at, directly or indirectly, concluding agreements.

The party offering commercial communication shall provide the other party, prior to or at the moment of concluding an electronic agreement, with suitable means by which the other party can effectively access and review whether there are any errors, and can rectify such.

The Ordinance intends to remove as many uncertainties as possible and to facilitate electronic traffic while guaranteeing a number of fundamental values and standards in an electronic environment.

Karel Frielink
Attorney (Lawyer) / Partner

(11 February 2011)

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