Ethiopian Country Profile: Key Characteristics and Future Plans
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Is there an app for that? Using technology to your advantage in contract drafting and execution processes Peter Moran Principal Norton Gledhill
Overview Legal issues regarding electronic contracting: Paperless contracts o Electronic signing o Clickwrap and browserwrap o Deeds o Electronic Conveyancing o Using the Cloud o Security o Privacy Electronic Contract Service Offerings Automated Contracts and other useful apps and developments o Is there an app for that? | 1 Sep 2016 Page 3
Legal issues regarding electronic contracting Paperless contracts Does the paperless contract provide clear evidence of the parties intention to be bound by its terms? Has the offeror stipulated a method of communicating acceptance that precludes doing so electronically? Eliason v Henshaw 4 Wheaton 225 (1819) (send answer by same wagon not mail). Consider adding a boilerplate provision to contracts which states that, in the event that the parties sign and exchange contracts electronically, the parties consent to the contracts being produced, signed and retained solely in an electronic form, provided that production, signing and retention otherwise complies with the relevant requirements of the Electronic Transactions Acts. This ensures the contract satisfies ss 9(1)(d), 9(2)(d), 10(1)(d), 11(1)(e), 11(2)(e) of the ETA Cth and ss 8(2)(b), 9(1)(c), 10(1)(c), 10(2)(c) of the ETA Vic. If not, ensure parties agree explicitly to method of execution and exchange. Is there an app for that? | 1 Sep 2016 Page 4
Legal issues regarding electronic contracting Electronic signing A signature, as a legal concept, bears no relationship to the popular conception of a name, on paper, in the signatory s own handwriting. A signature is not a thing but a process. If that process produces sufficient evidence that a person has adopted a document as his own, and that document before the court is the same document to which the process was applied, then the document has been signed. Prof Reed C, What is a Signature , 2000(3) The Journal of Information, Law and Technology (JILT). Cf Firstpost Homes Ltd v Johnson [1995] 1 WLR 1567 - the term signature must be given its ordinary linguistic meaning such that the parties must write their names with their own hands upon the document. Is there an app for that? | 1 Sep 2016 Page 5
Legal issues regarding electronic contracting Electronic signing Electronic Signatures - definition in Australia An electronic communication satisfies an obligation to provide a signature if: 1. a method is used to both identify the signee and indicate their intention; 2. the method is as reliable as is appropriate; and 3. the counterparty consents to the method used. Section 10 of Electronic Transactions Act 1999 (Cth) and section 9 of the Electronic Transactions (Victoria) Act 2000 (Vic) This largely follows the approach suggested by the UN in the UNCITRAL Model Law. See also, for US definitions of electronic signatures, section 206 of the Electronic Signatures in Global and National Commerce Act; section 1710 of the Government Paperwork Elimination Act and section 2 of the Uniform Electronic Transactions Act. Is there an app for that? | 1 Sep 2016 Page 6
Legal issues regarding electronic contracting Electronic signing J Pereira Fernandes SA v Mehta [2006] 2 All ER 891 a person typing his or her name into an email, including via typing an email address, into an email could be a sufficient signature for the purpose of satisfying the Statute of Frauds. See similar decision in Austral-Asia Freight Pty Ltd v Turner [2013] FCCA 298. Russells (A Firm) v McCardel [2014] VSC 287 The printed name Sam at the end of an email satisfies 2 (ie 9(1)(b)(i)) but not 1(ie 9(1)(a)) but a very context driven decision. Legal Services Board v Forster [2010] VSC 192 Emerton J held that the typed signature was intended to stand as the person s signature. He referred to common law authorities, such as Morton v Copeland, that a signature may be any mark which identifies it as the act of the party. Getup Ltd v Electoral Commissioner (2010) 189 FCR 165 The signing of an electronic document with a conventional signature but using a digital pen on a tablet is a method that satisfies a legislative requirement to provide a signed form. Is there an app for that? | 1 Sep 2016 Page 7
Legal issues regarding electronic contracting clickwrap and browserwrap Bay International AG v Creative Writing Festival Entertainment Pty Ltd (2006) 170 FCR 450 Clicking on send this order and purchase ticket buttons on an online form (after having provided identification) was held to constitute the signing of an electronic contract. US decisions indicate that browsewrap agreements will be upheld if the user has actual or constructive knowledge of a website or app s terms and conditions prior to use. Every occasion that a clickwrap agreement has been considered by the courts in the US, they have been found to be enforceable. Fitzgerald, Fitzgerald, Middleton, Clark and Lim, Internet and E-Commerce Law, Business and Policy Lawbook Co, 2011 Is there an app for that? | 1 Sep 2016 Page 8
Legal issues regarding electronic contracting Deeds until there is legislative change, it would seem that an original version of a deed must be a signed and attested paper document. Seddon on Deeds [2.28] at page 98. Cf Section 10 (Vic ETA) and 11(Cth ETA) a requirement to produce a document that is in the form of paper is taken to have been met by an electronic form of the document. Section 14E of the VIC ETA: section 7 (which validates a transaction) applies the section to a transaction constituted by or relating to a contract. Section 9(3)(b) of the Electronic Conveyancing National Law re registry instruments. Is there an app for that? | 1 Sep 2016 Page 9
Legal issues regarding electronic contracting Electronic Conveyancing Electronic Lodgement of Registry Instruments under the Electronic Conveyancing National Law May be lodged electronically if it is lodged in a form approved by the Registrar and by a method approved by the Electronic Lodgement Network (section 7). An instrument lodged electronically under section 7 has the same effect as if the instrument were in the form of a paper document (section 9(1)). Registry instruments can be digitally signed: in accordance with the participation rules of the applicable instrument(section 9(2)). Is there an app for that? | 1 Sep 2016 Page 10
Security The internet and email are inherently insecure Lavabit, PRISM, Wikileaks, WiFi, BYOD, passcodes. Your ISP (and your recipient s ISP) can examine all the data you send and receive via the internet as a side effect of providing your internet connection. Your email provider (and your recipient s email provider) can examine all your email simply as a side effect of providing your email service. Security is inversely proportional to useability: eg Tor, multi-factor authentication. Is there an app for that? | 1 Sep 2016 Page 11
Legal issues regarding electronic contracting Using the Cloud ASD [Australian Signals Directorate] strongly encourages agencies to choose either a locally-owned vendor or a foreign- owned vendor that is located in Australia and stores, processes and manages sensitive data only within Australian borders. Note that foreign-owned vendors operating in Australia may be subject to foreign laws such as a foreign government s lawful access to data held by the vendor. Cloud Computing Security Considerations ASD Discussion Paper http://www.asd.gov.au/publications/protect/cloud_computing_security_considerations.htm Be aware of what is a cloud service. Is there an app for that? | 1 Sep 2016 Page 12
Legal issues regarding electronic contracting Privacy Obligations Australian Privacy Principles If revenue over $3 million, may be applicable to law firms. APP 11: must take reasonable steps to protect personal information from misuse, interference and loss and from authorised access, modification or disclosure. APP 12: must provide access to a person's personal information upon request of that person. APP 8: If disclosed to an overseas organisation, can be responsible for the use of the information by the organisation. Is there an app for that? | 1 Sep 2016 Page 13
Legal issues regarding electronic contracting Privacy Obligations What is disclosure? Not defined in Privacy Act. APP Guidelines say that an APP Entity discloses personal information when it makes it accessible to others outside the entity and releases the subsequent handling of the personal information from its effective control (B.64). Disclosure is to be contrasted with use . See 8.14 of APP Guidelines: For example, where an APP Entity provides personal information to a cloud service provider located overseas for the limited purpose of performing the services of storing and ensuring the entity may access the personal information, this may be a use provided: 1. there is a binding contract between the parties for the information to handled only for these limited purposes; 2. the contract requires subcontractors to agree to the same obligations; and 3. the contract gives the entity effective control of how the information is handled. Is there an app for that? | 1 Sep 2016 Page 14
Electronic contract service offerings Adobe Sign e3.png Is there an app for that? | 1 Sep 2016 Page 15
Electronic contract service offerings Docusign - www.docusign.com.au Part owned by Telstra, currently being adopted as internal e-contract standard for Telstra, appears to be dominant system in Australia and one of the market leaders in US. Adobe Sign www.acrobat.adobe.com/au/en/sign Major player incorporated with Adobe and Microsoft documents. Right signature https://rightsignature.com Citrix s offering reputation for security. Is there an app for that? | 1 Sep 2016 Page 16
Contract automation Issues ETA permits automated contracts see s14C (ETA Vic) and s15C (ETA Cth). Blockchain or distributed ledger technology. Meshing contract law principles (which allow for mistake) with an automated contract process (see also s14D and 15D of ETA Vic and ETA Cth re withdrawing from automatic contract with an error). Contract enforcement in an anonymous environment. Preventing insolvent trading and other inadvertent breaches. Is there an app for that? | 1 Sep 2016 Page 17
Contract automation processes Shake Logo Infotrack sign2Exchange Infotrack - eCOS Thompson Reuters Contract Express Smart Contracts CodePact Is there an app for that? | 1 Sep 2016 Page 18
Other useful apps and digital services providers for contracts and commercial lawyers Is there an app for that? | 1 Sep 2016 Page 19
Other useful apps and digital services providers for contracts and commercial lawyers Is there an app for that? | 1 Sep 2016 Page 20
Websites www.legaler.com www.shakelaw.com www.sharefile.com www.evernote.com www.goodnotesapp.com www.mycase.com www.Peterpmoran.com Is there an app for that? | 1 Sep 2016 Page 21
