Emo Ltd. v ILuv Truf Inc.

1. Emo.com Ltd. v ILuv Truf Inc. Claimants Strategy Hound Dog & Tooth Co. Arbitration Department LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

2. THE CASE Emo sold 200 kilos of exclusive black truffle to ILuv Truf, a company Singapore. Emo negotiated and entered into the contract using the ILuv Internet interface. Emo shipped the 200 kilos of exclusive black truffle but ILuv refused to pay, saying that it never entered into the contract. LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

3. The Relevant Laws • The law applicable to the merits of the case. • The law applicable to the procedural issues. • The law of the place where the arbitration takes place. • The law for the recognition and enforcement of the tribunal’s decision. • The Law of the place where the act (certification) took place. At least 12 different legal dispositions LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

4. PRE-STAGEEstablishing the Arbitration Tribunal • Emo’s request for the opening of proceedings and submission to the Tribunal. • Emo’s Relief Requested to the Arbitral Tribunal. LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

5. Pre-ISSUES • Competence of the ICC Tribunal • Validity of the Choice of Law Clause LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

6. ILuv Truf, Inc. might intend to challenge the Arbitration Agreement. Before the ICC tribunal • ICC Arbitration Rules. • UK Arbitration Act 1996 Before the national courts of France- • Civil Code - Third Book Title Sixteen - Arbitration Agreements • and The French Civil Procedural Code. Text 4. Title V. International Arbitration. Before Singapore’s courts at the stage of recognition. • New York Convention 1958 and the Singapore Arbitration Act 2001. LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

7. Choice of Law Clause UK Contracts (Applicable Law) Act 1990 LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

8. ISSUE 1 Contract Existence and Validity LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

9. Contract Formation • A contract can be described as an agreement involving mutually enforceable promises. • The promises made by the parties define the rights and obligations of the parties. • When an offer has been made, no contract is formed until the offeree accepts the offer. LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

10. Contractual liability is based on consent. …. “in any manner sufficient to show agreement”…, (USA Uniform Commercial Code § 2-204. Formation in General) John Chic LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

11. When does acceptance (consent) took place? Entores v Miles Far Eastern Corp [1955] 2 QB 326 Offer and acceptance; Telex The rule about instantaneous communications between the parties is different from the rule about the post. Lord Justice Denning, ‘the ordinary rule of law (to which the special considerations governing contracts by post were exceptions) applied to a contract effected through the channels of a teleprinter service and that such a contract was not complete until the acceptance of an offer was communicated to the offeror’. Confirmed in Brinkibon v Stahag Stahl [1982] 1 All ER 293. LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

12. Digital Signature= Signature=Agreement? Goodman v J Eban Ltd Signature of bill; facsimile rubber stamp. Where an Act requires a document to be "signed" by a person…. the Act is satisfied if the person himself places upon the document an engraved representation of his signature by means of a rubber stamp. Evershed, M.R.: "... as a matter of good practice, the 'signature' of a bill of costs… by means of a rubber stamp seems to me in general undesirable’… However… ‘the affixing of the name by a rubber stamp was a "signature " for the purposes of ….’. LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

13. ISSUE 2Contract Authentication LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

14. Non-repudiation and Integrity. • How is Emo ensured that the sender of the Contract is indeed authentic? That John Chic Account Executive was originally accepting the contract by an express means. • How Emo is ensured that nobody has laid his hands on the encrypted contract? LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

15. What guarantee does Emo have that the Contract passed has not been modified during the transit or by other malicious companies? It is through CODE-Architecture John Chic’s Digital Signature that we can find out whether the ‘Terms’ of the contract are in their original form as intended by ILuv Truf Inc. LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

16. Digital Signature The primary properties of a paper signature are: • it is intended to be associated with a particular individual; • it generally shows a commitment related to a particular document, with the exact meaning depending on context. However, additional security properties are required of signatures in the electronic world. LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

17. The nature of the Internet makes that the probability of disputes increases for electronic transactions without face-to-face meetings, e.g. Non-repudiation problem; And that problems as those of modifications to electronic documents arise, e.g. Integrity problem. Digital signatures address both of these concerns. LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

18. Digital Signature • To the naked eye, digital signatures are nothing more than a sequence of meaningless numbers and digits. • But for experts that understand them, they are unique thumbprints of a private document in encrypted format. LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

19. Digital Signature A formula: the sequence of characters representing the electronic data to be signed, and a secret number referred to as a signature private key. LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

20. This has two critical results: • The digital signature can be uniquely associated with the exact document signed. • The signature can be uniquely associated with the signing individual. LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

21. Types of Digital Signatures • Emo has to ensure that its appointed arbitrator is an expert in cryptography. LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

22. Non-repudiation and Integrity How do digital signatures address non-repudiation and integrity? LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

23. Non-repudiation: Because digital signatures are generated with the sender's private key, which is held only by the sender and not available to anybody else, it assures that the sender is indeed who he claims to be. LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

24. Digital signatures are very sensitive to any changes made in the original signed document. If any minor changes are observed in the original document during signature verification, the signature verification process fails! Thus, digital signatures assure the integrity of the transmitted data. LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

25. Digital Signature Devise • How is verification done in practice? • How does Emo.com Ltd. verified John Chic’s Signature? LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

26. Digital Signature as evidence. The ECA generally recognises the admissibility of electronic signatures (sect.7). However, it doesn’t create presumption as to the provenance, authenticity or date of any data carrying an electronic signature, it will be for the parties to lead evidence on these issues. (Martin Hogg p. 46) LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

27. Third Party Involved John Chic TrustMe Certification Authority. LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

28. Singapore Electronic Transactions Act 1998 (mirroring the ECA sect. 6) provides for the appointment of a Controller of Certification Authorities (CCA) to enable regulations to be made for the licensing of certification authorities (CAs). Controller of Certification Authorities LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

29. Conclusion • If the Certification Authority has been legally form, and it has secured ILuv Truf Internet interface and signatures, Mr. Chic’s Digital Signature is legally binding ILuv to perform its obligations under the Contract. • Therefore, Emo is entitled to sue for breach of contract and claim the £ 120000.00 payment + interest, and the cost of arbitration. Security Information forwww.iluvfruf.sg Security Status:ValidValidity Period:May 20, 2004 to May 20, 2005Site URL:https://www.iluvtruf.sgServer ID Info.:CN=www.iilutruf.sg, OU=inlis2, O=Singapore Land Authority, L=Singapore, ST=Singapore, C=SG LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.

30. End LAW 078: ELECTRONIC CONTRACTING Hound Dog & Tooth Co.