Andrew McCallum

1
Electronic Transactions Act
Andrew McCallum Ministry for Economic Development
2
Origins

• UNCITRAL Model Law
• Law Commission Reports
• Common law no impediment
• Statutory law thousands of requirements for
  information to be in writing, signed, retained or
  produced, notices given etc.

3
What the Act Does

• Part 2
• confirms the legality of electronic transactions
• provides default rules for time and place of
  dispatch and receipt of electronic communications
• Part 2 applies to all electronic transactions

4
What the Act Does Part 3

• Overarching legislation that provides that
  statutory requirements for information to be in
  writing, signed, retained or produced may be met
  using electronic methods, so long as the methods
  used are functionally equivalent to the
  paper-based requirement.

5
Scope of Part 3
Laws of NZ
Common Law nothing changes
Acts and Regulations Enables Electronic methods
to be used
6
Default Rules

• Can have other rules by agreement
• Based on international standard

7
Fish-hooks

• What if my email goes astray?
• What if my letter is posted in the wrong post
  box?
• What if I lose some of my data?
• What if my basement floods and my file boxes are
  damaged?
• What if someone steals my electronic identity?
• What if someone steels my credit card?

8
Signature

• The Act does not tell you how, it just provides
  that you can.
• The signature provisions only apply to statutory
  requirements for signatures.
• So for contract formation, it is completely
  irrelevant.

9
Consent

• The consent requirement only applies to statutory
  requirements
• Most business transactions are not governed by
  statutory law, but by the common law.

10
Current Status

• Royal Assent October 17th 2002
• Regulation making powers came into force
• Once regulations made, rest of Act will come into
  force by order in council
• Early next year

11
Regulation Credit Contracts Act

• Express consent required for notices under the
  Credit Contracts Act.
• Without such express consent there will be a
  presumption that such notices must be sent by
  post.
• credit contracts notices sent electronically will
  be deemed to be received after four working days
  - in line with rule for post.

12
Regulation Tax Records

• Tax records that originate in paper form may be
  kept electronically, and the paper original
  destroyed, but..
• These documents will be required to be scanned,
  to retain some forensic information.
• safe-harbour requirement.

13
What is the original?

• Records generated electronically may be kept
  electronically -
• eg invoice generated electronically, but printed
  out and posted
• To sender - original is electronic
• To recipient - original is paper, and must be
  scanned.