E-Commerce and ODR Conference
Seoul September 2012
John D. Gregory
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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
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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
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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
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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
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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
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Perhaps the principal attraction for Canada:
ECC to interpret acceptability of ecommunications 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
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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
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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
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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
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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
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