Electronic Communications Convention- Impact on common law jurisdictions 2008

III. Exclusions

[13] The UECA is designed to have a broad application, with limited exceptions. Domestic electronic commerce legislation provide for various exclusions, depending on the province or territory. The scope and type of exclusions is not uniform, although some common, recurring exclusions include wills and their codicils, trusts created by wills, enduring powers of attorney, negotiable instruments, and documents that create or transfer interests in land and that require registration to be effective against third parties.[13]

[14] So-called “consumer” contracts are not excluded from the application of any provincial or territorial domestic electronic commerce legislation. Therefore, consumers are subject to the electronic equivalence provisions and rules governing the formation of electronic contracts contained in such legislation. Article 2.1.(a) of the Convention specifically and absolutely excludes contracts concluded for personal, family or household purposes.[14]  The rationale for this appears to be that consumer protection is beyond the scope of the Convention, that domestic legislation governing consumer protection would be available to parties who are consumers pursuant to the application of private international law rules,[15] and that the significant use by consumers of the Internet required a complete exclusion of consumer contracts from the Convention, which is not designed to address consumer protection issues.[16]

[15] Excluding consumers from the Convention potentially removes the benefit of legal certainty in transnational electronic contracting with consumers.[17]  However, domestic electronic commerce and consumer protection legislation will usually be available to consumers pursuant to the application of private international rules. Some provincial online-specific consumer protection legislation will broadly apply where a party resides in the province or if an offer or acceptance is sent from or made in the province.[18] In limited situations (if, for example, a consumer resides in a province or territory with consumer protection legislation that is silent on its jurisdictional application, and private international law rules indicate the law of the contract is that of another jurisdiction) consumers may lose the certainty of domestic electronic commerce legislation and will not have the provisions of the Convention to rely on.

[16] The Convention also excludes specific financial transactions (Article 2.1.b) and negotiable instruments and similar documents (Article 2.2).  Most provinces and territories exclude negotiable instruments, and some exclude documents of title, from the application of their electronic commerce legislation. Many, but not all, provinces and territories specifically exclude documents that create or transfer interests in land and require registration to be effective against third parties, and wills.

[17] As different states have different reasons for imposing restrictions that might not be required or desirable in other jurisdictions, the Convention has limited exclusions. Canada would still have the option of making specific exclusions by declaration pursuant to Article 19. For the purpose of uniformity between domestic and international transactions, consideration should be given as to whether any of the exceptions reflected in most domestic electronic commerce legislation should also be included in the Convention.

Next Annual Meeting

2019 Conference

Delta Hotel

St. John's, NL

August 18 - 22, 2019