Negotiations may be conducted in writing or orally, and contracts may be in writing or orally. Article 13 of the Convention provides that: For the purposes of this Convention, “writing” includes telegrams and telexes. Note that in the Convention, written form does not include fax, electronic data exchange and e-mail. However, in terms of the use of electronic communications, the Convention is also supplemented by the 2005 United Nations Convention on the Use of Electronic Communications in International Contracts (hereinafter referred to as the “Electronic Communications Convention”).
The purpose of the Electronic Communications Convention is to facilitate the use of electronic communications in international trade and to ensure that contracts concluded and other communications exchanged in electronic form are as valid and enforceable as their traditional paper counterparts. The Electronic Communications Convention may help avoid possible misunderstandings of the Convention, such as when certain countries make declarations requiring that international sales of goods contracts must be in traditional written form.
The Electronic Communications Convention may also promote the understanding that “communications” and/or “writing” under the Convention should be interpreted as including electronic communications. The Electronic Communications Convention is an enabling treaty whose effect is to remove these formal barriers by establishing the requirement of functional equivalence between electronic form and traditional written form.
In the Convention on Electronic Communications, “electronic communication” means any communication sent by a party in the form of a data message. “Data message” means information generated, sent, received or stored by electronic, electromagnetic, optical or similar means, including but not limited to electronic data exchange, e-mail, telegram, telex or fax.
In addition, the “Opinions of the Advisory Committee on the United Nations Convention on Contracts for the International Sale of Goods on Electronic Communications” (hereinafter referred to as the “Opinions on Electronic Communications”) clearly states that the conclusion or proof of a contract can be made by electronic communication, and the “written form” referred to in the Convention includes all kinds of electronic communications that can tangibly express the contents contained. It also points out that “oral” includes voice and instant electronic communication transmitted by electronic communication. If an offer is made by instant electronic voice, the promise should be made immediately, unless the circumstances indicate that an exception should be made. The premise for making an offer or promise by instant electronic voice is that the recipient has expressly or implicitly agreed to receive an electronic voice in a specified format at a specified address using a specified electronic voice type.
Article 10 of the Contract Law provides that: Parties may enter into a contract in written, oral or other forms. If laws and administrative regulations require that a contract be in written form, it shall be in written form. If the parties agree to adopt a written form, it shall be in written form. Article 11 provides that: Written form refers to forms such as contracts, letters and data messages (including telegrams, telexes, faxes, electronic data interchange and e-mails) that can tangibly express the contents contained therein.