Implementing the E-Communications Convention in Canada – Some Issues

The Uniform Law Conference has asked for model legislation to implement the UNCITRAL Convention on the use of Electronic Communications in International Contracts (the E-Communications Convention, or the ECC). In order to prepare this legislation, one needs to answer a number of policy questions — and then some drafting questions.

I have done an issues paper outlining the questions that have occurred to me. I would very much like your views on the right answers.

Here are the questions, to pique your interest:

1. Should Canada accede to the Convention?

My proposed answer is Yes. Each province and territory can make its own choice, though.

2. Application of the Convention: how is it triggered?

The law applicable to the contract is the Convention, by diverse routes. I think we should not take any exceptions to what is in the Convention.

3. Application of the Convention: what other conventions?

The Convention can apply to communications about contracts subject to any other convention to which a contracting state is a party. I think that Canada should extend it to all such conventions.

4. Application of the Convention: international and domestic contracts?

The Convention applies on its face only to international contracts, but we could amend our domestic law so the same rules apply to both levels of contract. Some other countries — notably Australia and Singapore — are likely to take this approach. Some considerations each way are set out in the paper.

5. Attach the Convention or rewrite the UECA?

The ULCC often does implementing legislation that just annexes the full text of the convention as a schedule. Which way we go for the ECC may depend on the answer to the previous question on applying the Convention’s rules to domestic law as well as to international contracts.

6. Application of the Convention: exclusions and permissions

We need to figure out what to do with our exclusions compared to those in the Convention, if we harmonize our domestic law with it. Ditto for the places where our law (the UECA, for the common law provinces) is more permissive than the Convention: do we need to restrict it? Have I got the dynamics right in this discussion?

7. Compatibility with existing Canadian law

Two studies were done for the ULCC in 2008 on compatibility of the Convention with Canadian common law and civil law. The common law study found general compatibility. The civil law study found general compatibility except on a key issue, the functional equivalent of ‘writing’, on which point the study said the Convention’s solution would not work in Quebec law. That study concluded that Quebec, and indeed Canada, should not adopt the Convention as a result. The issues paper comments briefly on the issues.

Comments on any of these issues would be welcome, in case a discussion is necessary, or to me directly. I would like to have a good idea of the optimal approach by, say, the middle of April.

Feel free to send on the questions or the link to the issues paper to anyone you think would be interested. I can make a Word version available, but did not want to impose on people’s bandwidth. (It’s only 11 pages long including a page of sources.) Is there someone who should be consulted more formally?

Thanks for your ideas and your help.