Electronic Communications Convention- Impact on common law jurisdictions 2008

IV. Application and Derogation

[18] Article 8.1, which provides for functional equivalency of electronic communications with their paper-based counterparts, reflects section 5 of the UECA. Similarly, Article 8.2 reflects section 6(1) of the UECA: parties are not required to use or accept electronic communications, but consent to do so may be inferred from conduct. However, pursuant to Article 13 of the Convention, any rule of law that requires terms of a contract that have been negotiated through electronic communications to be made available to the other party in another format, will still be applicable.[19]

[19] The UECA and several of the provinces stipulate that the respective legislation applies to the Crown,[20] that the inference of consent does not apply to government parties, and that consent of a government to accept information in electronic form must be expressed by communication accessible to the public or to those likely to communicate with it. [21] Special rules for government apply in other circumstances as well.[22] The Convention does not define “government” and does not contain any provisions dealing specifically with government parties.

[20] The frequency and types of interactions between governments and other parties are clearly greater in the domestic sphere. Also, the primary purpose of the Convention, which is the facilitation of international trade, is narrower than the rationale for domestic electronic commerce legislation, which includes clarification of the legal effectiveness of communication with government. Nevertheless, whenever government is a party to an international contract, no specific exclusions or exceptions are available that deviate from the fundamental provisions of the Convention.   In Particular, Article 1.3 states that “neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention.”

[21] The preservation of party autonomy appears to be a guiding principle of the Convention. As stated in Article 8.2, parties are not required to accept or use electronic communications.  Article 3 of the Convention also broadly allows parties to derogate from or vary the effect of any of its provisions. Although a similar provision specifically permitting “contracting out” is not contained in the UECA or domestic electronic commerce legislation, the use or acceptance of electronic communications under such legislation is not mandatory.[23] However, under the Convention the ability of the parties to derogate or vary the statutory provisions is greater because of Article 3.[24]

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