E-Commerce and ODR Conference Seoul September 2012 John D. Gregory

 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: ECC2

 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: ECC3

 Two studies done for the ULCC 1. Common law (Deturbide) ◦ No significant incompatibility ◦ Minor differences would not matter 2. Civil law (Gautrais) ◦ Mostly not incompatible with Quebec law ◦ Problem: writing requirement  Accessible for subsequent reference vs integrity rule Gregory: ECC4

 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: ECC5

 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: ECC6

 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: ECC7

 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: ECC8

 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: ECC9

 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: ECC10

 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: ECC11