Current Uniform Acts

Electronic Communications Convention - Impact on Quebec 2008

Comparative Analysis of the United Nations Convention on the Use of Electronic Communications in International Contracts and the Civil Law of Quebec

By: Vincent Gautrais *

Readers are cautioned that the ideas or conclusions set forth in this paper, including any proposed statutory language and any comments or recommendations, may not have not been adopted by the Uniform Law Conference of Canada.  They may not necessarily reflect the views of the Conference and its Delegates. Please consult Resolutions on this topic as adopted by the Conference at the Annual meeting.

Québec City, Québec August 2008

Table of Contents

I. Introduction

II. Preliminary Comparison of the Instruments 

1 – Brief Introduction to the Instruments in Issue

1.1 – Introduction to the Quebec Law relating to Electronic Documents

1.2 – Introduction to the Convention

2 – Brief Introduction to the Comparison

2.1 – Common Principles

2.2 – Differences in Application

III. Methods of Forming Electronic Contracts

1 – Rules Governing Form

1.1 – Writing

1.2– Signature

1.3 – Original

2 – Other Methods of Forming Electronic Contracts

2.1 – Place and time of dispatch and receipt of electronic documents

2.2 – Automated contract

IV. How the Convention is Applied

1 – Irreconcilability of Quebec Law and the Convention

1.2 – Inflexibility of the Convention

2 – Recommendation not Accede to the Convention

ANNEX 1

FOOTNOTES

Comparative Analysis of the United Nations Convention on the Use of Electronic Communications in International Contracts and the Civil Law of Quebec

I. Introduction

[1] The main purpose of this document is to present a comparison between the United Nations Convention on the Use of Electronic Communications in International Contracts (the Convention) and Quebec’s Act to establish a legal framework for information technology (the LFIT Act ) which effected far-reaching changes in the legal management of documents using information technology, and in particular the Civil Code of Québec (the C.C.Q.).

A –  Terms of Reference for this Document

[2] The Department of Justice Canada instructed us to investigate whether it would be appropriate for Canada to accede to the Convention, having regard to Quebec law. This question is particularly sensitive from the standpoint of Quebec in that the LFIT Act contains a number of elements that distinguish it from equivalent legislation in the other provinces,[1] this difference being particularly sensitive in that the other Canadian provinces have opted for a relatively uniform approach.

[3] We would also note that these instructions were clear in stressing that the opinion to be stated in this document, in particular with respect to whether it would be appropriate to proceed toward accession to the Convention by Canada, is solely the opinion of the author, who is currently a professor in the Faculty of Law of the Université de Montréal and has studied the legal aspects of electronic documents, and specifically electronic contracts, for the last 15 years.[2]

[4] We would also point out that the comments in this document reflect a much more practical than theoretical viewpoint, the purpose of this study being to provide a clear, concrete response regarding the recommended approach of whether to accede to the Convention. Based on these instructions, a document of about 25 double-spaced pages was requested; the document is instead 36 pages long, with in addition an appendix containing a table comparing the Convention and the Quebec law.

B – Outline of the Document

[5] In order to carry out the instructions in the best manner possible, we thought it wise to provide a general discussion, in the Preliminary Comments, of the instruments in question, the Quebec legislation (LFIT Act and C.C.Q.) and, of course, the Convention, and also to provide an outline of the comparison, including both the similarities and differences between the two that are immediately apparent. Then, in Part One, we set out the substance of the comparison, as instructed, examining the Convention from the perspective of Quebec law relating to the formation of international electronic contracts. These issues in relation to the formation of contracts must be considered from the standpoint both of the formal rules provided in both cases and of more specific concerns (such as the place and time of receipt and dispatch of the documents required for contracts, electronic agents, errors in long-distance contracts, etc.), since each instrument contains specific provisions in that regard. Lastly, and most importantly, Part Two contains more personal opinion, with the results of our analysis and recommendations, as requested.

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018