Ratifying the Electronic Communications Convention

I would like to raise again whether Canada should ratify the UNCITRAL Electronic Communications Convention (ECC). The ECC sets out in treaty form some of the basic rules of the 1996 Model Law on Electronic Commerce about how legal requirements that appear to need paper writings can be satisfied by electronic communications. The Convention operates only for international contracts, though it can be used as well to interpret other conventions to which the ratifying country is a party.

Thus the Convention says that information shall not be denied legal effect solely because it is in electronic form; that a legal requirement that information be in writing is satisfied if the information is accessible so as to be usable for subsequent reference; that a legal requirement that information be signed is satisfied if an electronic signature is used if that signing method is either appropriately reliable or if the identity of the signer and the connection between the signature and the information are demonstrated.

Australia has just announced that it will sign the Convention and ultimately implement it (see also: http://www.scag.org.au/): “Submissions from the business community and other interested groups all supported proposed amendments that will allow Australia to accede to the Convention on Electronic Contracting,” [the Standing Committee of Attorneys General] said in a communique.

In Canada the business community has been completely silent, so far as I know.

The annual meeting of the Uniform Law Conference in August 2008 received two reports on the ECC, one from the point of view of common law jurisdictions, and one from the point of view of Quebec’s Civil Law.

The common law paper [PDF] was done by Professor Michael Deturbide of Dalhousie. He concluded that there were no serious impediments in Canadian common law to implementing the ECC.

The civil law paper [PDF] was done by Professor Vincent Gautrais of Montreal. He concluded that most of the ECC did not present problems, BUT allowing a writing requirement to be satisfied by information accessible for subsequent reference was too drastic a departure from Quebec’s rule — in the Civil Code and in the Act to establish a legal framework for information technology — that the essence of a ‘writing’ in any medium had to be the integrity of the information. He recommended against ratification, a position supported by the Quebec delegation to the Conference.

The ULCC ultimately took no position on the ECC at the 2008 meeting.

I am inclined to think this is unfortunate. I was on the Canadian delegation to UNCITRAL when it created the ECC, so I may be biased in its favour. We do not really need the Convention for our own law, though its applicability to the interpretation of other international instruments could be very helpful. We need it to show countries without e-commerce laws that this is a safe law to adopt. In addition the Convention could be helpful to Canadian businesses making international contracts, since it can provide an acceptable set of rules for dealing electronically. Such contracts are not necessarily going to be governed by Canadian law. So the argument that the ECC adds little to Canadian law does not strike me as fatal to ratification.

I must say I am not persuaded by Professor Gautrais’s objection about ‘integrity’. In my view, saying that ‘the information’ must be accessible so as to be usable for subsequent reference means that all the information must be accessible, and it must be the same information, not altered information.

Quebec law provides that the information should retain its integrity during its life cycle. The ECC (and provincial and territorial laws based on the Uniform Electronic Commerce Act, in turn based on the UN Model Law) provides only for ‘subsequent reference’, without any specified duration. But I do not believe that ‘life cycle’ represents any specific duration either. The information lasts until it is destroyed or deleted, the same as for information on paper. This destruction may be legally satisfactory or not, but the legal rule is not affected by the possibility of destruction.

As the Model Law made clear, a record retention rule is logically and legally distinct from a writing requirement.

Would it be helpful to you or clients with transactions overseas to have the ECC as a legal support for electronic communications? Is the ECC the right support? Should the government of Canada move to ratification?

The ECC has the usual ‘territorial unit’ clause that allows a country like Canada to adopt the Convention piecemeal. Thus if Quebec does not want the ECC, it is not obliged to implement it, and Canada will not ratify it with respect to Quebec (or any other province or territory that takes the same view).


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