What are the key elements in a commercial law framework?
If we make the argument that we need a commercial law strategy for Canada and that Canada 's current commercial law infrastructure is outdated, lacks harmonization and generally needs reform, how do we define how that reform takes shape? What is this concept of commercial law - what ' s in the tool kit and what is not?
These are not particularly straight forward questions. The Working Group considered these questions in their June meeting. Their response was a very practical one. They suggested that Canadian jurisdictions should consider the reform of private commercial law that is most commonly used in Canada or that needs to be used. They recommended a 10 year strategy for developing a A national framework of commercial law reform. They also suggested priorities for reform in the first years of that strategy.
The areas covered by this strategy can be generally described in two categories - firstly, commercial law that orders affairs between private parties and, secondly, enforcement law which structures dispute resolution. In considering the content of the framework, the Working Group considered projects completed, underway or under consideration by the ULCC. They reviewed the elements contained in the Uniform Commercial Code developed and revised over the last 46 years in the United States by the National Conference of Commissioners on Uniform State Laws and the American Law Institute. They also made their own suggestions for inclusion.
The Working Group was somewhat cautious in its approach to consumer legislation. The Working Group acknowledged that many of the elements of the framework outlined below have consumer implications and, in particular, protections (Sale of Goods, Electronic Commerce and Cost of Credit Disclosure). However, a great deal of consumer legislation (such as marketplace practices or direct sellers legislation) is grounded in social policy which can vary considerably from jurisdiction to jurisdiction. While it may be desirable to have harmonization in the minds of some, this would not be universal view, and, as such this type of legislation is not recommended as part of the framework.
The elements of the recommended framework are set out below:
I. Commercial Law that Orders Affairs between Private Parties
1. Sale of Goods
2. International Sale of Goods
3. Secured Transactions
4. Federal Secured Transactions **
5. Commercial Liens
6. Warehouse Receipts, Bills of Lading and Other Documents of Title
7. Transfer of Indirectly Held Securities
8. Electronic Commerce *
10. Licensing of Intellectual Property
11. Negotiable Instruments (Bills of Exchange) **
12. Cost of Credit Disclosure Act
* While Electronic Commerce is listed here as a separate item because it has some stand-alone features, it also pervades a number of the other elements.
** In the view of the working group, the federal government has an important role to play in ensuring the success of a Canadian Commercial Law Framework. This is for two reasons. First, the federal government has broad constitutional jurisdiction in many areas of commercial law under section 91 and 92(10)(a) of the Constitution. Second, the federal government has exercised these powers in many areas relevant to the uniform project. Leading examples are Negotiable Instruments (Bills of Exchange and Promissory Notes), Banking, Bankruptcy, Intellectual Property and Shipping. It also seems likely that in the foreseeable future, the federal government will adopt legislation dealing with the various aspects of the Internet.
1. Civil Enforcement
2. Enforcement of Canadian Judgments and Decrees Act
3. Court Jurisdiction and Proceedings Transfer Act
4. Enforcement of Foreign Judgments Act
5. Enforcement of Judgments Convention Act
6. Arbitration Act
7. International Commercial Arbitration Act
8. Settlement of Investment Disputes Act
The Detailed Analysis of each of these components of the framework and the reason for their inclusion are outlined in Appendix A.