Electronic Evidence Act Consultation Paper 1997

Trading Partner Agreements

[74] Many users of electronic data interchange agree to standards for the transmission of their messages and the confirmation of them, along with log systems to ensure that their messages are accounted for. Such "trading partner agreements" often provide that records that comply with the agreed standards may not be challenged on the ground that they are electronic in form or otherwise unsatisfactory under the rules of evidence.

[75] Some people doubt that such agreements are valid, as they appear to contract out of the rules of evidence. It is arguable that parties may validly agree to certain facts whose existence is owed to following processes prescribed in their agreement. We are inclined however to think that these general agreements should be enforced, as between the parties only. Naturally contract defences and fraud would vitiate an agreement, but an attempt to enact a private code of evidence should not.

[76] The ULCC proposes that its uniform act should authorize private agreements on how to deal with evidence arising out of electronic transactions between the parties to the agreements.

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