Electronic Commerce: Recent Legal Developments in Colombia

Abstract

Colombia was one of the first countries in the world to adopt a law on electronic commerce (Law 527 of 1999). However, not many things have changed ever since in the procedural scenario in that country. The notarial function has a long-standing tradition in Colombia as well as in other Latin American countries. The continental European legacy of this institution has crafted an important part of the local legal culture, usually characterized by veneration to the authenticity of all kinds of documents. The large number of civil and commercial transactions subject to the formality of a public deed granted before a notary public is both costly and inefficient. Apart from economical reasons, there are theoretical justifications to the continuity of the notarial function. It is said to provide legal certainty due to the authenticity regarding the subscribing parties and their signatures. The main legal obstacle in this respect is related to the subsistence of civil and commercial regulations providing for the mandatory requirement of public deeds before notaries for several acts and contracts. These legal provisions maintain the traditional civil law approach, whereby a solemnity is required for certain important contracts to be proved in the event of conflict between the parties. Said formalistic approach denies all legal effect to such contracts if they have not been granted before a notary public. The local legal culture has been influenced by these traditional definitions to a high extent. This particular influence is notable within the judicial circuits in which reverence to the paper formality is still the general rule. The enactment of Law 527 of 1999 on electronic commerce offers an unparalleled opportunity to challenge old fashion constructions related to the law of contracts. It is clear that the most difficult legal problems in this respect could be dealt with by the amendment of all subsisting civil or commercial provisions establishing the requirement of public deed. Data messages electronically signed could be an appropriate alternative to the traditional public deeds. Their registration for public record should not be a problem either. Naturally, such filing requirements would also have to be performed by electronic means. Most importantly, an appropriate diffusion of these new legal criteria will be necessary. This educational objective will have to be particularly attained within the judicial community. This objective is of paramount importance in light of the legal certainty requirement. Electronic evidences presented in any judicial proceeding will have to be duly acknowledged and given the appropriate weight in accordance with the new law. It is also predictable that the initial application of these new developments will take place in the arbitration circles.