Electronic Communications Convention- Impact on common law jurisdictions 2008

FOOTNOTES

[1] Michael Deturbide is Professor of law and Associate Dean, Academic, at Dalhousie Law School.

[2]Available online: www.uncitral.org/pdf/english/texts/electcom/05-89450_Ebook.pdf

[3] Available online: http://www.ulcc.ca/en/us/

[4] See Electronic Transactions Act, S.A. 2001, c. E-5.5; Electronic Transactions Act, S.B.C. 2001, c. 10; The Electronic Commerce and Information Act, S.M. 2000, c. E55; Electronic Transactions Act, S.N.B. 2001, c. E-5.5; Electronic Commerce Act, S.N.L. 2001, c. E-5.2; Electronic Commerce Act, S.N.S. 2000, c. 26; Electronic Commerce Act, S.O. 2000, c. 17; Electronic Commerce Act, S.P.E.I. 2001, c. E-4.1; The Electronic Information and Documents Act, S.S. 2000, c.E-7.22; Electronic Commerce Act, S.Y. 2000, c. 10.

[5] Available online: http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/2005Convention.html

[6] Explanatory note by the UNCITRAL secretariat on the United Nations Convention on the Use of Electronic Communications in International Contracts (hereinafter referred to as “Explanatory Note”), at para. 45, available online: http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/2005Convention.html

[7] See John D. Gregory, “The Proposed UNCITRAL Convention on Electronic Contracts” (2003), 59 The Business Lawyer 313 at 317.

[8] Such assessments of the Convention have been performed with respect to the laws of other countries. See, for example, the American Bar Association Recommendation and Report, available online: www.abanet.org/intlaw/policy/investment/unelectroniccomm0806.pdf, which urges the U.S. government to become a signatory to the Convention.

[9] See, for example, Nova Scotia’s International Sale of Goods Act, S.N.S. 1988, c. 13, available online: http://www.gov.ns.ca/legislature/legc/statutes/internls.htm

[10] Explanatory Note, supra note 5, at para. 63.

[11] Article 19.1(a) states that any contracting party may declare in accordance with the procedure in Article 21 that it will apply the Convention only “when the States referred to in article 1, paragraph 1, are Contracting States to this Convention.”

[12] See Explanatory Note, supra note 5 at para. 65: “Whether the law of a contracting State applies to a transaction is a question to be determined by the rules of private international law of the forum State, if the parties have not validly chosen the applicable law.” See also Article 3, which permits parties to derogate from or vary any provisions of the Convention, and Article 5.2: “Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.”

[13]  Supra note 2, s.2.

[14] Although most contracts within this description would be traditionally labeled “consumer” contracts, other contracts, such as matrimonial property contracts, could be captured by this exclusion. See Explanatory note, supra note 5 at para. 74.

[15] Ibid. at para. 73.

[16] Ibid. at para. 77.

[17] See John Gregory, supra note 6 at 321.

[18] See, for example, Internet Sales Contract Regulation, Alta. Reg. 81/2001.

[19] For example, the EU Directive on Electronic Commerce, 2000/31/EC, which requires the provider of goods or services to make terms available for downloading and printing. Consumer protection legislation in Canada may also require a supplier to disclose information in an accessible manner that ensures the consumer is able to retain and print the information. See, for example, Ontario’s Consumer Protection Act, 2002, S.O. 2002, c. 30, Schedule A, s. 38(3)(b).

[20] Supra note 2, s. 3.

[21] Supra note 2, s. 6(2).

[22] For example, the UECA states that where the signature or signed document is to be provided to the Government, the requirement is satisfied only if the Government or the part of Government to which the information is to be provided has consented to accept electronic signatures. Supra note 2, s. 10(3).

[23] Supra note 2, s. 6(1).

[24] The Explanatory Note, supra note 5, at para. 84 et seq indicates that the Convention reflects the view that party autonomy in contractual negotiations should be broadly permitted.

[25] Explanatory Note, supra note 5 at para. 126.

[26] The Preamble states that the parties to the Convention are “of the opinion that uniform rules should respect the freedom of parties to choose appropriate media and technologies, taking account of the principles of technological neutrality and functional equivalence…” Supra note 5.

[27] See, for example, Re Newbridge Networks Corp. (2000), 48 O.R. (3d) 47 (Sup. Ct.)

[28] See, for example, the Nova Scotia Statute of Frauds, R.S.N.S. 1989, c. 442.

[29] There must exist a reliable assurance as to the integrity of the information (that it be complete and unaltered) from the time it was first generated in its final form, and the information be must be capable of being [displayed to (Convention Article 9.4)  / accessed by (UECA  s. 11(1))]  the person to whom it is to be made available.

[30] Supra note 5, Article 9(3)(a).

[31] Supra note 2, s. 1(b).

[32] See, for example, Electronic Transactions Act, S.N.B. 2001, c. E-5.5, s. 10.

[33] Supra note 5, Article 9.3(b)(i); supra note 2, s. 10(2).

[34] Supra note 5, Article 9.3(b)(ii).

[35] Supra note 2, s. 10(2).

Only the federal government has made such regulations, for the purposes of the definition “secure electronic signature” in the Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5), which differs from the UECA. See SOR/2005-30.

[36] Supra note 5, Article 3(b)(i).

[37] Explanatory Note, supra note 5 at para. 154.

[38] Supra note 5, Article 9.3(b)(ii).

[39] Supra note 1.

[40] Supra note 2, s. 20(1).

[41] Supra note 5, Article 4(b).

[42] Supra note 5, Article 4(c).

[43] See, for example, Pharmaceutical Society of Great Britain v. Boots Cash Chemists (Southern) Ltd., [1953] 1 QB 401 (C.A.).

[44] See, for example, Rudder v. Microsoft, [1999] O.J. No. 3778 (Ont. Sup. Ct.).

[45] See, for example, National Bank of Canada v. Clifford Chance (1996), 30 O.R. (3d) 746.

[46] Explanatory Note, supra note 5 at para. 175.

[47] Supra note 5, Article 10.1.

[48] Supra note 2, s. 23(1).

[49] John Gregory, “The UNCITRAL Draft Convention on Electronic Communications in International Contracting”, October 24, 2004.

[50] Supra note 5, Article 10.2.

[51] Supra note 2, s. 23(2).

[52] John Gregory, supra note 48.

[53] Supra note 5, Article 10.2.  Presumably this is a rebuttable presumption which would allow for a defense because of the use of a screening device such as a spam filter. See the ABA Report, supra, note 7 at 4.

[54] Supra note 5, Article 10.2.

[55] Supra note 2, s. 23(2)(b).

[56] For example, per John Gregory, supra note 48: “a message that is received after working hours may not be effective until the next working day, depending on the circumstances.  That is beyond the scope [of the Convention].”

[57] The Explanatory Note, supra note 5, at para. 289, indicates that the Convention’s substantive rules are intended to apply to the listed international instruments to allow those conventions to operate in an electronic environment.

[58] Online: www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG.html

[59] April 23, 1991.

[60] For example, Nova Scotia’s International Sale of Goods Act, S.N.S. 1988, c.13.

[61] Supra note 5, Article 10.3; supra note 2, s. 23(3).

[62] S.N.B. 2001, c. E-5.5, s. 16(3).

[63] Supra note 5, Article 4(g).

[64] Supra note 2, s. 19.

[65] Supra note 5, Article 12.

[66] Supra note 2, s. 21.

[67] See, for example, Thornton v. Shoe Lane Parking Ltd. [1971] 2 QB 163 (C.A.)

[68] Supra note 5, Article 14.

[69] Explanatory Note, supra note 5 at para. 240.

[70] Ibid. at para. 234.

[71] Available online: http://strategis.ic.gc.ca/pics/ca/sales_template.pdf

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