LEGALTECH and CIVIL / COMMERCIAL LAW. Blockchains vis-à-vis e-Agreements vis-à-vis NOM-151-SCFI-2016 July 15, 2020
The current situation that we are experiencing worldwide as a result of the COVID-19 has brought with it an important level of complexity to concrete and provide continuity to commercial transactions and operations; however, depending on the characteristics and particularities of the matter there are technological alternatives and mechanisms that allow the conclusion and formalization of Agreements and Contracts, among others, that will provide agility, opportunity, validity and legal certainty to the Parties, to the Third-parties and, even before the authorities, such as the Blockchains, the Electronic Agreements (e-Agreements) or the Mexican Official Standard NOM-151-SCFI-2016 (NOM-151).
The Federal Civil law states that a person’s consent can be manifested when his will is expressed through electronic means, optical or any other type of technology, as well as the aspects of assessment that such means require to grant them probative force. The Commercial law foresees the Advanced Electronic Signature (AES) and the Reliable or Simple Electronic Signature (SES) as those electronic data recorded, attached or associated with a data message that allow the signatories to be identified, its approval to such message and, to produce the same legal effects as an original signature.
In plain language the Blockchains are electronic “books or data blocks” to which cryptographic codes are added that provide security and inalterability to the information registers carried out by the Parties and their transmission. Each change or modification made in a “book or data block” will create a new one that will be chained and will be part of the previous one.
This technology is used recurrently to conclude “Smart Contracts”.
However, the provisions that regulate the Blockchains are incipient, which will require a robust development to resolve or channel the legal consequences by their use. This technology does not require the use of the AES or the SES.
The e-Agreements are electronic platforms provided by technology management companies that allow the Parties to create documents and sign them through the use of the SES foreseen in the Commercial law, providing security and inalterability to the information through cryptographic elements.
Finally, the NOM-151 is a Standard that provides the possibility of creating electronic documents and signing them through the use of the AES of the Parties which is recognized by administrative and even judicial authorities, guaranteeing their authenticity and inalterability, as long as the Parties have a certificate of conservation issued by an Accredited Certification Services Provider.
According to the characteristics of the matter, its significance, the particularities that must be taken into account such as the “certain date” in accordance with the Jurisprudence 2a./J. 161/2019 (10a.) issued by the Second Chamber of the Mexican Supreme Court of Justice, its legal consequences and, even the jurisdiction or jurisdictions where the Agreements, Contracts, etc., shall produce their effects, will be factors to weigh which technological means will be appropriate to use.
If you have any questions regarding the foregoing, please do not hesitate to contact us.
Mexico City, July 15, 2020