ELECTRONIC TRANSACTIONS IN THE NETHERLANDS ANTILLES
A digital signature has the same legal effect as a hand-written signature
The Ordinance on agreements to be concluded electronically (‘Landsverordening overeenkomsten langs elektronische weg’) became effective on 1 January 2001.
Trade, financial services and other commercial activities are taking place by electronic means in a quickly growing pace. The Netherlands Antilles was ahead of many countries in developing legislation in this respect.
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 a species of the electronic signature. In practice, scanned signatures and biometric identification methods, such as scanned eye irises and fingerprints, also belong to the electronic signatures. The Ordinance proceeds on a broad concept of electronic signature.
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 series of electronic, radio-electric, electromagnetic, or optical signals. For the conclusion of an agreement by electronic means it is required that the provider of commercial communication (i.e. the party offering services or goods by electronic means) receives the other party?s consent to the offer. An offer made by electronic means can also be accepted by the other party in writing. Nevertheless, there is question of an agreement concluded by electronic means, and 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 how electronic agreements can be concluded, but also prescribes restrictions on commercial communication through electronic channels which is initiated from, or aimed at, the Netherlands Antilles and which aims at, directly or indirectly, concluding agreements.
Under the Ordinance the offeror of such commercial communication should at least mention:
a . the name, place of establishment and address of the offeror
b. effective contact details of the offeror
c. registration details relating to the offeror
d. the steps that need to be taken to conclude an electronic agreement
e. a specification of the product or service, the price, commission and other costs and indemnifications
f. the way of payment and delivery
g. applicable terms and conditions
h. other rights and obligations, such as suspension and termination rights and
i. applicable law and dispute resolution.
The offeror of commercial communication shall provide the other party, before or at the moment of concluding an electronic agreement, with suitable means by which the other party can review in an effective and accessible way whether there are any errors, and can rectify the same.
The Ordinance intends to remove as much uncertainties as possible and to facilitate electronic traffic as well as guaranteeing a number of fundamental values and standards in an electronic environment.
Karel Frielink
Attorney (lawyer) / Partner
