Electronic Communications Convention- Impact on common law jurisdictions 2008

VIII. Functional Equivalency and Technological Neutrality

[29] The Preamble to the Convention specifically states that technological neutrality and functional equivalence are the guiding principles of the Convention.[26] These principles have also guided the UECA, and were embraced by the courts in Canada even before the implementation of electronic commerce legislation.[27]

[30] Article 9 of the Convention recognizes the functional equivalency of electronic communications with respect to the requirements that contracts be in writing, be signed, or be in original form. Other concepts which are covered by the UECA and domestic electronic commerce legislation, such as requirements for retention and storage, are not reflected in the Convention. The Explanatory Note indicates that because the Convention deals with international transactions per se, and not governmental regulatory objectives, and different countries have different degrees of technological development, issues such as retention and storage were not addressed in the Convention.

[31] Various laws in Canada require that documents be in writing or signed, or be in their original form. For example, the common law provinces have enacted legislation based on the English Statute of Frauds that require certain contracts, such as contracts for the sale of land or contracts that cannot be performed within one year, be in writing and signed by the person sought to be charged.[28] These issues have been addressed by the provincial and territorial electronic commerce legislation, which stipulate that any requirement in law that must be in writing or in a specific form, such as signatures and original documents, is satisfied by using an electronic equivalent.

[32] The requirements under Article 9 of the Convention relating to the necessity of writing mirror those of the UECA and provincial/territorial legislation (that is, the information must be accessible so as to be usable for a subsequent reference). Similarly, the requirements under the Convention for situations where the law requires a communication or contract to be made available or retained in original form are comparable to the UECA.[29] With respect to requirements that a communication or contract be signed by a party, the language of the Convention and the UECA diverge somewhat. As noted earlier, the Convention does not use the term “electronic signature”, but simply requires a method to identify the party and to indicate that party’s intention in respect of the information contained in the electronic communication.[30] The UECA defines “electronic signature” as information in electronic form that a person has created in order to sign a document.[31] Although most provincial and territorial electronic commerce legislation adopts the UECA definition of “electronic signature”, some provinces augment the definition somewhat.[32]

[33] Both the Convention and the UECA anticipate the signature method will be reliable in light of all circumstances.[33] In the case of the Convention, the method may be proven in fact to have been reliable in the alternative.[34] The UECA stipulates that relevant provincial or territorial authorities may make regulations respecting reliability of electronic signatures.[35] The reliability issue is one of objective determination under the Convention.[36] Consequently, the reliability requisite under the Convention does not depend on a government regulation.

[34] The Convention’s more general language reflects a deliberate effort to refrain from identifying specific technologies that could be equivalent to handwritten signatures.[37] In this respect the provisions of the Convention relating to equivalencies for the signature requirement are somewhat more technologically neutral than the UECA and its provincial/territorial counterparts. Although the standard of reliability in the circumstances is a guiding principle under both regimes, the Convention does not allow a party to repudiate its signature for its unreliability when the identity of the party has been proven and is not in dispute.[38]

[35] The differences in the functional equivalency provisions developed by UNCITRAL between the Convention and the UECA (which is based on the earlier UNCITRAL Model Law on Electronic Commerce)[39] demonstrate a honing of language in the later Convention that attempts to capture ongoing technological developments. However, existing concepts of “electronic signatures” under provincial and territorial electronic commerce legislation are broadly defined and not appreciably dissimilar to the Convention’s requirements.

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