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Summary of questions

THE FOLLOWING QUESTIONS ARE IDENTIFIED in this paper as being matters on which the Law Commission is particularly interested in receiving comments.

The law of contract

Q1 Is it necessary for the law to state expressly that parties to an agreement are bound by the acts of an electronic system under their control, and may not deny liability purely on the grounds that the electronic system acted without direct human input? (paras 55–64)

Q2 Does the requirement that the terms of a contract be sufficiently certain pose any particular problem when contracts are formed electronically? (paras 78–81)

Q3 Should the law be reformed to allocate risk presumptively for electronic messages which are delayed, or should parties be free to make their own arrangements? (paras 85–87)

Q4 Should a general statutory provision on timing of electronic messages similar to article 15 of the UNCITRAL Model Law on Electronic Commerce be adopted in New Zealand? (paras 90–93)

Q5 Should there be special statutory rules which attribute liability for electronic messages? (paras 94–99)

Q6 Should there be an optional statutory register to facilitate electronic bills of lading? (para 125)

Q7 Is special legislation necessary to facilitate the use of electronic bills of lading, or is it sufficient to allow for electronic equivalents of “writing” and “signature” and leave other impediments for the market to resolve? (para 127)

Q8 Is there any justification for continuing the existing requirement that air waybills be printed on paper? (paras 129–134)

The law of torts

Q9 Are there any policy reasons for limiting the boundaries of tortious liability incurred from the use of electronic communication networks, having regard to the problems of defining “neighbourhood” in an electronic environment? (paras 191–192)

Evidence

Q10 Are there any circumstances in which it would not be appropriate to use a standard statutory definition of “document” which includes documents in electronic form? (paras 215–225)

Q11 Are there any circumstances in which evidence would be inadmissible only by reason of having been created or stored electronically? (paras 235–237)

Q12 Do the Commission’s recommendations for reform of the law of evidence meet the needs of electronic commerce? (paras 238–249)

Conflict of laws

Q13 Should New Zealand adopt presumptive rules as to choice of law and choice of forum, such as those relating to sales contracts provided for by the Vienna Sales Convention? (para 297)

Electronic signatures

Q14 Should New Zealand adopt a statutory provision similar to article 7 of the UNCITRAL Model Law on Electronic Commerce, which allows electronic signatures to have the same effect as manual signatures? (paras 343–344)

Q15 Should any such reform, if adopted, also specify acceptable standards for electronic signatures, or should standards of security or reliability be left for the market to develop? (paras 343–344)

Q16 Does New Zealand need a domestic electronic signature infrastructure? (paras 343–344)

Q17 Should the state play any role in facilitating the use of electronic signature technology, for example, by assuming responsibility for the implementation of such an infrastructure? (paras 343–344)

Other issues

Q18 How can the appropriate balance be struck between the legitimate need to protect confidentiality of communications and the equally legitimate need of the community to ensure its laws are properly policed? (para 348–351)

Q19 Which government agency is best placed to address the need for reform and the nature of any reform? (para 348–351)

Q20 Is there any need to control the issue or use of “electronic money” in New Zealand (paras 360–361)

Q21 Should issuers of “electronic money” be required to register as banks under the Reserve Bank of New Zealand Act 1989? (paras 360–361)

Q22 Is special legislation necessary, for example, to prevent “electronic money” from being used to launder money, or to protect consumers in the event of issuers defaulting? (paras 360–361)

Q23 Is there any need to be concerned about the international movement of “electronic money”? (paras 360–361)

Q24 Are there any legal or economic implications arising from allowing “electronic money” issued in one country to be redeemed in another? (paras 360–361)

Q25 Should banking issues be addressed by the Law Commission or the Reserve Bank of New Zealand? (paras 360–361)

Q26 Are any further steps, beyond redefining “writing” and “signature” to include electronic equivalents, necessary to facilitate paperless international banking transactions? (paras 362–363)

Q27 Do the laws which protect intellectual property need to be reformed to cope with new forms of electronic communications and publishing? If so, should the Law Commission or the Ministry of Commerce undertake such work? (paras 364–380)

Q28 Should the Securities Act 1978 be amended to give the Securities Commission jurisdiction over securities offers made to the New Zealand public from overseas? Should this issue be dealt with by the Law Commission or the Securities Commission? (paras 381–382)

Q29 Is there a case for special rules for the taxation of electronic transactions? Should such issues be addressed by the Law Commission or the Inland Revenue Department? (paras 383–389)

Q30 Should New Zealand enact a provision similar to article 10 of the UNCITRAL Model Law on Electronic Commerce, allowing those people or organisations who are required to keep records to do so electronically? (paras 390–394)

General questions

The following questions have been identified during our research into legal issues raised by electronic commerce. They do not address electronic commerce issues as such, but rather represent general legal issues which have been brought into sharp focus by the advent of electronic commerce.

Q31 Should the doctrine of consideration continue to be an essential element of binding contracts? (paras 75–77)

Q32 Should the Land Transfer Act 1952 be amended to allow the register itself and registrable instruments to be in electronic form? (para 111)

Q33 Are there any statutes which cannot be reformed to permit electronic transactions merely by redifining “writing” and “signature” to include electronic equivalents? (para 137)

Q34 Is a statutory remedy of breach of confidence necessary to impose civil liability for unauthorised copying or interception of confidential information? (paras 158–166)

Q35 Should New Zealand adopt the Lugano Convention on conflict of laws and recognition of foreign judgments? (paras 305–307)