Information Technology Reference
In-Depth Information
the circumstances, void or voidable. Another aspect to take into account is whether
the SLA and/or the other related contract should be made in written form (with
signature of the parties). This also depends on the applicable legislation and, in
general terms, the agreement for the provision of a service can be made in whatso-
ever form in Europe (Beale et al. 2002). With this regard, Article 9(2) of the Rome
Convention
3
on contractual obligations states that “A contract concluded between
persons who are in different countries is formally valid if it satisfies the formal
requirements of the law which governs it under this Convention or of the law of one
of those countries.” This means that an agreement made, for instance, by a Dutch
customer (
SaaSforyou
) and a German Grid or Cloud provider (
SuperICTResources
)
is valid if it respects the formal requirements set forth by Dutch or German law.
If the parties are established in the same jurisdiction, Article 9(1), following the
rationale behind the abovementioned second paragraph of Article 9 to recognise
as much as possible the validity of an agreement (
favor negotii
), points out that
“A contract concluded between persons who are in the same country is formally
valid if it satisfies the formal requirements of the law which governs it under this
Convention or of the law of the country where it is concluded.”
The fact that the written form is not a validity requirement for the contract does
not necessarily mean that it is not convenient for the parties to have a written and
signed copy of the agreement in case it is needed or useful, especially in order to
have evidence of the existence of the contract and of its content. In this regard, the
Grid/Cloud provider and the customer can make an electronic contract to which the
electronic signatures of the parties are attached, or, more traditionally, can make a
paper-based copy of the contracts with 'real' signatures. In principle, provided the
legal value conferred by the applicable legislation of the European Union (EU) to
the electronic signature
4
, the two versions of the agreement shall have exactly the
same validity and effects.
Finally, we focus on some other important clauses that the parties should include
in the SLA (or in another contract, according to the case) or that are likely to be
encountered in the agreements drafted by the big international providers:
3
1980 Rome Convention on the law applicable to contractual obligations (consolidated
version) [OJ C 27, 26/01/1998, p. 34-46]. For contracts concluded after 17 December 2009,
Regulation (EC) 593/2008 of 17 June 2008 on the law applicable to contractual obligations
(Rome I) [OJ L 177, 4/7/2008, p. 6-16] will apply. Art. 11(2) states that “A contract
concluded between persons who, or whose agents, are in different countries at the time of
its conclusion is formally valid if it satisfies the formal requirements of the law which
governs it in substance under this Regulation, or of the law of either of the countries where
either of the parties or their agent is present at the time of conclusion, or of the law of the
country where either of the parties had his habitual residence at that time.” With this regard,
Art. 19(1) specifies that “For the purposes of this Regulation, the habitual residence of
companies and other bodies, corporate or unincorporated, shall be the place of central
administration.”
4
See, in particular, Directive 1999/93/EC of the European Parliament and of the Council of
13 December 1999 on a Community framework for electronic signatures [OJ L 13,
19/1/2000, p. 12-20].
