The United Nations Convention on the Use of Electronic Communications in International Contracts (the "Electronic Communications Convention", ECC or e-cc) is a treaty that aims at facilitating the use of electronic communications in international trade. It was prepared by the United Nations Commission on International Trade Law (UNCITRAL) and adopted by the United Nations General Assembly on 23 November 2005. Pursuant to Article 23, it entered into force on 1 March 2013, the first day of the month after six months passed following adoption by three States parties, namely the Dominican Republic, Honduras, and Singapore.
Adoption The following twenty-one States have ratified, accepted, approved, acceded to, or succeeded to the Electronic Communications Convention:
The Electronic Communications Convention has been signed, but not yet ratified, by the Central African Republic, China, Colombia, Iran, Lebanon, Madagascar, Panama, the Republic of Korea, Saudi Arabia, Senegal, and Sierra Leone.
Other states that have publicly declared their intention of adopting the Electronic Communications Convention include Australia, and Mauritius.The alignment of the Electronic Transactions Act of Mauritius with the provisions of the ECC in order to enable the adoption of the ECC was foreseen in the National ICT Strategic Plan 2007-11, goal S1P6. That goal has not been implemented, together with other legislative measures. The National ICT Strategic Plan 2011 – 2014: Towards i-Mauritius aims at completing unfinished legislative work (goal P3). Canada has prepared uniform legislation to facilitate the adoption of the ECC at the State level,Uniform Electronic Communications Convention Act which has been enacted by Ontario and Saskatchewan.The Electronic Communications Convention Implementation Act being Chapter E-7.201 of the Statutes of Saskatchewan, 2018 (effective May 9, 2018). Similar legislation has been prepared in the United StatesSee materials posted on the webpage of the International Trade Subcommittee of the Cyberspace Committee of the American Bar Association Business Law Section. and on 10 February 2016 President Obama sent a message to the Senate asking for accession of the convention.Message to the Senate -- The UN Convention on the Use of Electronic Communications in International Contracts In Australia, all states and territories and the Commonwealth have passed amending legislation to conform to the convention.Alan Davidson, Social Media and Electronic Commerce Law, 2nd edition, Cambridge University Press, (2016) page 159.
The relevance of the Convention goes beyond its adoption as a treaty. More than 30 States have enacted the substantive provisions of the Convention domestically.See Sub footnote (e). This contributes to modernizing and harmonizing the law of electronic transactions. However, the convention has to be formally adopted in order to get full international law effect.
Background and policy goals UNCITRAL has been active in formulating uniform legislative standards for the use of electronic communications in trade since the 1980s. A first result of such work was the adoption of the UNCITRAL Model Law on Electronic Commerce, 1996 (MLEC), followed by the UNCITRAL Model Law on Electronic Signatures (MLES), 2001. However, a number of issues remained unsolved, namely, the possibility to enable to use of electronic communications in cases where a formal written requirement is mandated by another treaty, usually drafted before the widespread use of electronic means. Moreover, as model laws may be enacted with variations in the various jurisdictions, it was felt that establishing a core of common provisions would increase uniformity and therefore predictability in international trade law. Finally, it was felt that some of the provisions of the MLEC and of the MLES could be outdated and complemented.Alysia Davies, "The Development of Laws on Electronic Documents and E-Commerce Transactions ", Parliament of Canada, Library of Parliament Research Publications, Background Paper No. PRB 00-12-E.
As a result, the Electronic Communications Convention addresses different policy goals: 1) it removes obstacles arising from formal requirements contained in other international trade law treaties; 2) it provides a common substantive core to the law of electronic communications, thus ensuring a higher level of uniformity both in the legislative text and in its interpretation; 3) it updates and complements the provisions of the MLEC and of the MLES; 4) it provides core legislation on electronic communications to those States not having yet any, or having partial and insufficient provisions.L. Castellani, ‘The United Nations Electronic Communications Convention - Policy Goals and Potential Benefits’, 19(1) Korean Journal of International Trade & Business Law 1 (2010), at 2.
Article 14.5.1 of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership sets forth that: "Each Party shall maintain a legal framework governing electronic transactions consistent with the principles of the UNCITRAL Model Law on Electronic Commerce 1996 or the United Nations Convention on the Use of Electronic Communications in International Contracts, done at New York November 23, 2005".
Article 12.10 of the Regional Comprehensive Economic Partnership sets forth that: "Each Party shall adopt or maintain a legal framework governing electronic transactions, taking into account the UNCITRAL Model Law on Electronic Commerce 1996, the United Nations Convention on the Use of Electronic Communications in International Contracts done at New York on 23 November 2005, or other applicable international conventions and model laws relating to electronic commerce".
Provisions
General provisions With respect to substantive provisions, the Electronic Communications Convention builds extensively, on the fundamental principles of the uniform law of electronic commerce developed by UNCITRAL (non-discrimination, technological neutrality, functional equivalence, and irrelevance of place of origin) as well as on several specific articles of the MLEC and of the MLES.The main source of information on the Electronic Communications Convention is the "Explanatory note by the UNCITRAL secretariat on the United Nations Convention on the Use of Electronic Communications in International Contracts ".
The Electronic Communications Convention is also inspired by a number of provisions of the CISG, especially in the parts relating to scope of application, to general principles and to final clauses. Thus, article 3 ECC corresponds to article 6 CISG, giving effect to the principle of party autonomy. Article 5 ECC is the equivalent of article 7 CISG, introducing a duty of uniform interpretation of the treaty, and defining the ancillary criteria for interpretation.
Article 6 builds on the notion of "place of business" introduced by the CISG and adapts it to the electronic environment. In particular, it is specified that the location of equipment and technology supporting an information system, or the location where the information system may be accessed by other parties, are not, as such, decisive to determine the place of business. Those elements may, however, concur to determine the place of business. Similar considerations apply to the use of a domain name or electronic mail address connected to a specific country. The sources of paras. 2 and 3 of article 6 ECC are found in article 15(4)(a) and (b) MLEC.
Scope of application Article 1 ECC defines the scope of application of the convention. The source of inspiration of that article is clearly article 1 of the United Nations Convention on Contracts for the International Sale of Goods (CISG). However, a major difference lies in the fact that the ECC, unlike the CISG, does not require that the concerned parties have their places of business in States parties to the ECC. Therefore, the ECC applies if the law applicable to the communications is the law of a State party to the ECC, or if the parties have validly chosen as the law applicable to their communications the law of a State party to the ECC. A third option is the application of the substantive provisions of the ECC if chosen by virtue of agreement of the parties.
According to art. 4(a) ECC “Communication” means any statement, declaration, demand, notice or request, including an offer and the acceptance of an offer, that the parties are required to make or choose to make in connection with the formation or performance of a contract; it is therefore not necessary that the contract is concluded. Moreover, it is possible that only some or one clause of the contract are in electronic form, including, for instance, the arbitration clause. Moreover, according to art. 4(b) ECC “Electronic communication” means any communication that the parties make by means of data messages; the notion of data message is defined in art. 4 (c) ECC along the lines of the same definition contained in the MLEC and MLES. The outcome of such broad approach is that the notion of electronic communication encompasses the use of different technologies, including, e.g., SMS, but also digital audio and video recording.
Art. 2(1)(a) ECC is inspired by article 2(a) CISG. Both provisions aim at excluding consumers' transactions from the scope of application of the respective conventions. Art. 2(1)(b) ECC excludes from the scope of application of the convention certain fields that already enjoy uniform legal provisions, contractually (e.g., international payments systems) or otherwise (e.g., treaties relating to securities held with an intermediary). Art. 2(2) ECC excludes from the scope of application of the convention electronic transferable records. These are electronic records that entitle the entity controlling them to the delivery of goods or the payment of a sum, as evidenced in the record. This exclusion is due to the fact that uniform legal standards for the functional equivalence of notions such as “possession” in the electronic world have yet to be developed. Since 2011, UNCITRAL Working Group IV (Electronic Commerce) is tasked with defining those standards.
States may vary the scope of application of the convention by lodging declarations. Thus, the declaration foreseen in article 19(1)(a) limits the application of the convention to cases when all the States where the parties involved in the transaction have their place of business are contracting States. This is the same mechanism envisaged in article 1(1)(a) CISG. Article 19(1)(b) limits the application of the convention to cases when the parties so choose.
Article 19(2) ECC gives States the possibility to exclude certain matters from the scope of application of the ECC. These exceptions could be similar to those made in corresponding national legislation: Singapore has lodged this type of declaration upon ratification of the Electronic Communications Convention.
Last, but not least, parties may vary or derogate from any provision of the Convention under its article 3. This is a provision common in international trade law treaties, where freedom of contract is considered an overarching principle. However, in practice there might be limits of public order, or other mandatory provisions, that might limit the freedom of the parties.
More about the ECC and its scope and application as regards the CISG can be found at the IICl- Pace CISG Database.
Substantive provisions Article 8 ECC sets forth at the international level the principle of non-discrimination of electronic communications already established, for national legislation, in article 5 MLEC.
Article 9 ECC is the core provision establishing the parameters for functional equivalence between electronic and paper-based communications.
In particular, article 9(2) ECC deals with functional equivalence of the notion of "written form". The provision follows that of article 6(1) MLEC.