Electronic Communications Convention- Impact on common law jurisdictions 2008

V. Definitions

[22] Most of the definitions contained in the Convention reflect the concepts of the UNCITRAL Model Law on Electronic Commerce on which the UECA is based. For example, the definition of “data message” in the Convention is similar to the UECA definition of “electronic”. The UECA’s definition (which is the same in the domestic statutes) includes “recording” as a means by which something can be considered electronic, while the Convention uses “stored” in its definition.

[23] The Convention does not use the term “electronic agent”. However, the definition of “automated message system” in the Convention equates it to that of “electronic agent” in the UECA and the domestic statutes. The main differences are that the Convention specifies that the automated message system involves being able to “…initiate an action or respond to data messages or performances… without review or intervention by a natural person each time an action is initiated or a response is generated by the system.” The domestic statutes define an electronic agent as being able “…to initiate an action or to respond to electronic documents or actions in whole or in part without review by a natural person at the time of the response or action.”

[24] The UECA and the domestic statutes (except for New Brunswick) all use the term “place of business” but do not define it. The Convention does provide a definition for “place of business” in Article 4(h) as “any place where a party maintains a non-transitory establishment to pursue an economic activity other than the temporary provision of goods or services out of a specific location.”

[25] The UECA and the domestic statutes all define “electronic signature”. New Brunswick and Prince Edward Island have more detailed definitions than the others. The Convention foregoes a definition of “electronic signature” but in other respects reflects the UECA’s requirements of identification and reliability. The comparison is examined in more detail in Section VIII of the Report.

VI. Location of the Parties

[26] Because the Convention applies to international contracts, the place of business of the parties is a vital detail. Article 6 sets out rules for determining the location of the parties for the purposes of ascertaining the “place of business” defined in Article 4 (h). Factors such as habitual residence, locations indicated by the parties, and relationship to the contract are considered in the determination. Article 6.5 stipulates that a connection between a domain name or electronic mail address and a particular country may not be sufficient to link the party with that country. Although no similar guidance is provided in the UECA or domestic electronic commerce legislation, the significance of this exercise is primarily for determining if the parties are in different states and consequently whether the Convention is applicable.

[27] Assuming that the Convention would apply to government, the “place of business” of a provincial government would likely be the particular province, whereas the “place of business” for the federal government could be the place of the particular governmental department.

VII. Information Requirements

[28] Article 7 stipulates that the parties must comply with domestic law requirements, such as providing accurate and truthful representations. No special duty is imposed under the Convention, which is in conformity with international business transactions in traditional, non-electronic environments.[25]

Next Annual Meeting

2020 Annual Meeting

Place to be Announced

August 9 – 13, 2020