Implementing the ECC in Canada

Implementing the ECC in Canada
E-Commerce and ODR Conference Seoul September 2012 John D. Gregory

Overview Federalism in Canada Compatibility with Canadian law Desirability of provisions of ECC Application to what contracts? Application to other conventions? Implement for international contract only, or amend domestic law to conform? Harmonizing law with ECC’s exclusions Harmonizing law with Canadian permissions Gregory: ECC

Federalism in Canada The legal effect of conventions in Canada Not self-executing Power to implement = power to legislate on the subject-matter of the convention Much private international law is provincial e.g. law of contracts So: Provincial participation in delegations Provincial advisory group to federal government Role of Uniform Law Conference of Canada Gregory: ECC

Compatibility Two studies done for the ULCC Common law (Deturbide) No significant incompatibility Minor differences would not matter Civil law (Gautrais) Mostly not incompatible with Quebec law Problem: writing requirement Accessible for subsequent reference vs integrity rule Gregory: ECC

Desirability ECC not needed in domestic law All provinces and territories have law based on UN Model Law on Electronic Commerce Some provisions of the ECC are taken from Canadian or American model statutes Some advantage internationally A good and familiar compromise if domestic law cannot be made to apply to a 2-country contract Give other countries confidence in the principles Gregory: ECC

Application to contracts Basic rule acceptable: ECC applies if both countries where parties are located are member states, if country of applicable law (by law or by choice) is member state. No reason to restrict this as permitted by article 19(1). Same rule in CISG has not presented problems. Parties can opt out in whole in part, expressly or by implication through their actions. Gregory: ECC

Application to other conventions Perhaps the principal attraction for Canada: ECC to interpret acceptability of e-communications used in contracts governed by other conventions. Avoids need to amend other conventions. Experience with domestic statutes at time of implementing Model Law suggests low risk. Some potential problem areas may be excluded from ECC already. Can opt out later if issues arise. Gregory: ECC

International only or all contracts ECC has no surprises for parties who know domestic law, so can have common rules. Attractive to have a single set of rules for all contracts: simplicity, no need to be concerned about location of party (for this reason…) BUT: convention demands uniform implementation Amending domestic law can be slow, uniformity hard Some (e.g. Quebec) may not wish to change domestic law but may accept international rules. Parties can opt out if they do not like the ECC’s rules. Gregory: ECC

Harmonizing exclusions What is excluded from current Canadian law tends to be excluded from the ECC. Sophisticated financial transactions might be reformulated. Canada’s special rules for ‘government’ or ‘public bodies’ might need adjustment (or abandonment after 12 years of experience) Each province can make its own declarations (but ideally would not) Gregory: ECC

Harmonizing permissions More difficult question: if ECC excludes transaction but Canadian law allows electronic version, can Canadian law apply? Short answer: yes – same as for substantive law of contract, rules of civil liability But: will it be a surprise to someone relying on ECC to find that its automated contracts are voidable or e-signatures are enforced where ECC would not find them reliable enough? What of consumer contracts? No intention to ban online consumer contracts so it is fair to apply domestic consumer law. Gregory: ECC

Conclusions Uniform Act adopted in 2011 to implement ECC with these policy choices Makes convention prevail over inconsistent domestic law on matters covered. Little political interest to date Coming into force of ECC in 2013 may help. Expect implementation in stages. Gregory: ECC

Implementing the ECC in Canada