Evaluating the Impact of the UN Convention on the use of Electronic Communications in International Contracts on Domestic Contract Law: The Singapore Example

• Main Author: MIK, Eliza
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2010
• Subjects: Asian Studies; Contracts; E-Commerce; Internet Law
• Online Access: https://ink.library.smu.edu.sg/sol_research/1070; https://ink.library.smu.edu.sg/context/sol_research/article/3022/viewcontent/MIKEVALUATINGTHEIMPACTOFTHEUNCONVENTION.pdf
• Institution: Singapore Management University

The United Nations Commission on International Trade Law (UNCITRAL) Convention on the Use of Electronic Communications in International Contracts (CUECIC or Convention) was adopted on 23 November 2005. Its essential objective is to establish uniform rules intended to “remove obstacles to the use of electronic communications in international contracts, including obstacles that might result from the operation of existing international trade law instruments, with a view to enhancing legal certainty and commercial predictability.” The Convention relies on the UNCITRAL Model Law on Electronic Commerce (MLEC), which constitutes an e-commerce flagship project dating back to 1995. It also resembles UNCITRAL’s Convention on Contracts for the International Sale of Goods (CISG), in terms of scope of application, principles of statutory interpretation and declarations of variations by ratifying countries. Unlike the CISG, which governs only sales of goods, the CUECIC covers all communications pertaining to the formation or performance of a contract – irrespective of its subject matter. Singapore is the first Asian country to accede to the Convention and the second country globally. Apart from the international aspect of such accession, Singapore also decided to implement some of the Convention’s provisions into domestic law. The resulting complications can serve as a note of caution to any state whose contract law – like that of Singapore – is based on the common law. Accordingly, most of the observations made in this article remain valid for countries with similar jurisdictions.This article takes a critical look at the CUECIC. It argues that contrary to the declaration made in the opening quote above, the Convention does in fact alter classic rules of contract formation and creates a separate regime for electronic transactions. Exposing some contradictions in the commentary accompanying the Convention, this article focuses on its implications for domestic contract law only. It does not aim to present a detailed one-by-one description of the Convention’s provisions or discuss its impact on the effectiveness or desirability, if any, of harmonization efforts in the area of international trade or contract law (electronic or otherwise). Assumedly, much of the critique that followed the CISG, especially regarding its uniform application, could be repeated here. The emphasis is not on how the Convention relates to other bodies of law on an international level but on how – in certain circumstances – it affects domestic contract law. It is impossible, however, to evaluate the impact of the Convention without evaluating the Convention itself. Logically, if any of its solutions or assumptions are inadequate, their impact will be disruptive rather that facilitating. The discussion commences with a brief explanation of the Convention’s goals, its scope and its underlying principles. Next, the “validation” of electronic transactions is presented alongside an evaluation of the (alleged) obstacles to e-commerce. The article proceeds with a brief critique of the harmonization efforts in the area of e-commerce and the creation of a parallel regime for electronic contracts. The implementation of some CUECIC provisions in Singapore’s Electronic Transaction Act 2010 is introduced. In particular, the interaction between traditional principles of contract law and the CUECIC “solutions” is illustrated on the basis of Article 10, which affects the time of contract formation.