Electronic Communications Convention- Impact on common law jurisdictions 2008

XII. Summary Conclusions

[60] The Convention will provide a global legal approach for international electronic commerce. Despite the fact that it differs somewhat from the UECA, the models are similar. Its principles are consistent with Canadian law, including the common law of contract. The benefits gained from a uniform international scheme outweigh concerns over perfect harmonization with domestic legislation.

[61] The Convention is designed to facilitate business to business electronic transactions between parties whose places of business are in different countries. It provides for legal recognition of electronic communications and offers some guidance on dispatch and receipt of electronic messages. However, the law of contract formation is left to private international law principles.

[62] Harmonization between the Convention and domestic legislation is desirable to avoid the possibility of two different sets of rules. The language used in the Convention reflects a greater degree of technological neutrality and considers technological developments to a greater extent than does the domestic electronic legislation. Unfortunately, the language used in the Convention is frequently quite different from that used in UNCITRAL’s earlier Model Law on Electronic Commerce, on which the UECA and domestic electronic commerce legislation are based. The impact of these differences will not likely be significant, given the Convention’s principal role as a facilitating instrument that does not impose substantive rules of contract law.  However, the possibility that judicial examination of these differences could result in unanticipated interpretations cannot be entirely discounted.

[63] In some instances, the refinement of language in the Convention compared with domestic legislation will give rise to different consequences. For example, with respect to automated message systems or electronic agents, the concept of “material error” in domestic legislation is different from “input error” in the Convention, and the Convention contemplates the preservation of the contract, if possible, when input errors are made. In other situations, the Convention addresses issues concomitant with its international business scope, which are not as vital in the domestic sphere (such as providing guidance relating to the location of the parties to the contract).

[64] In a federal system like Canada it would be impractical to seek identical language in the electronic commerce legislation in all jurisdictions.  The Convention, the UECA, and domestic electronic commerce legislation use different terminology and phrasing.  However, they are all based on the same principles and are compatible.  No particular provision in the legislation of provincial or territorial common law jurisdictions has been identified that is contrary to the tenets of the Convention or would impede its implementation.  Consequently, no amendment would have to be made to such legislation.

[65] The Convention enables electronic commerce by generally providing direction for parties to international contracts. It does not deal with substantive law issues, except in select, specialized matters (such as the impact of input errors made when dealing with automated message systems).

[66] Although consumer transactions are governed by domestic electronic commerce legislation, it appears appropriate to exclude such transactions from a convention dealing with transnational trade where concepts of consumer law may differ between countries and identification of consumer transactions may prove difficult. Such an approach has historically been employed under the CISG. Consumers entering into transnational contracts may have the benefit of both domestic electronic commerce legislation and consumer protection laws through the application of private international law rules to the agreement.

[67] The Convention does not raise any appreciable conflict with the principles of the common law of contract. The “place of business” deeming provisions add certainty to an evaluation of the time and place of contract formation by means of electronic communications, but may produce a result that is different from that reached by the application of common law rules to other communication media.

[68] The application of the Convention to the CISG may resolve an outstanding issue relating to when acceptance occurs in electronic communications, but only in respect of the international sale of goods.

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018