Coronavirus (COVID-19)—electronic signatures—when can these be used? A global perspective

Coronavirus (COVID-19)—electronic signatures—when can these be used? A global perspective

The precautions being put in place globally to address the spread of coronavirus (COVID 19) include recommending or requiring many people to work from home. This has raised the question of how to execute documents in these circumstances and whether it is possible to legally execute documents by electronic signature. The appropriate method of execution will depend on the applicable fact pattern. Relevant factors include the governing law of the document, the type of document that is to be signed, the form of electronic signature used and any cross-border implications to be considered. This briefing provides a summary table of how certain jurisdictions view three different types of execution—email execution, jpeg signatures and e-signature platforms.

The table is a high-level overview and is not a substitute for bespoke legal advice in respect of a specific fact pattern and does not purport to be fully comprehensive. In particular, readers need to be aware that in certain cases use of an electronic signature may necessitate qualifications or assumptions in legal opinions.

Fact pattern—the table has been prepared on the basis of commercial contracts entered into by commercial parties where a wet ink signature is not required. Wet ink signatures are commonly required for documents that need to be filed with a governmental agency or registry or that need to be notarised, legalised or apostilled. (Note that wet ink signatures for these and similar purposes may still be required even if an electronic signature complies with legislation that makes it equivalent to a handwritten signature, for example, a qualified electronic signature under the European eIDAS Regulation.) The table notes other examples of circumstances in which wet ink signatures may be needed.

Capacity—the table assumes no constitutional restrictions on the capacity of the parties to use electronic signatures.

Cross border—the table outlines the position in a particular jurisdiction in relation to documents governed by the law of that jurisdiction where the transaction parties are domiciled in that jurisdiction. If there is any nexus with another jurisdiction (for example, the domicile of a transaction party or enforcement is envisaged in another jurisdiction), the position would need to be checked with local counsel.

Evidential weight—it is likely that courts will assign different degrees of evidential weight to different types of electronic signature and this will depend on the facts and process by which the signature is generated and applied to a document.

European eIDAS Regulation (eIDAS)—eIDAS has direct effect across Europe. It provides for three types of electronic signature—simple, advanced and qualified. A qualified electronic signature (QES) must be created in a manner that satisfies a number of technical requirements. If those are met, it will have the same legal effect as a handwritten signature. This is not the case for a simple or advanced electronic signature, unless local law provides otherwise.

The table sets out the position relating to the three types of signing method currently commonly considered but there are of course other electronic signing method possibilities, such as using a pdf pen or signing on a tablet touch pad, that may become more prevalent as circumstances change.

Email signing

  • execution document sent by email to party

  • signature page or whole document is printed, signed, scanned (or photographed) and returned by email in accordance with agreed signing instructions

Jpeg signature

  • a pdf or jpeg of a signatory’s signature is saved, for example, onto a computer

  • the jpeg signature is applied as required to an electronic document

E-signing platforms

  • these are cloud based systems

  • a signatory opens a link sent by email and clicks a tab or types their name to sign the document
  • when each signatory has ‘signed’ the platform applies a computer generated signature of each party to the electronic document and creates a fully signed pdf version

  • a digital certificate is produced recording who signed the document, the time and date of signing and the IP address of each signatory’s computer

  • the executed pdf document is digitally sealed which will evidence any tampering with the document after signing

A starting point only

The table is only a starting point for discussions regarding signing of documents when physical signing is not possible. Our listed experts can provide advice in relation to specific transactions and, clearly, early consideration of the applicable fact pattern and related issues is recommended.

JurisdictionEmail executionJpeg signaturesE-signing platforms
BelgiumYes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)
 Examples of exceptions
  • if a wet ink signature or QES is required for example, certain corporate documents such as, assignments of registered shares, stocks or bonds when recorded in the relevant corporate registries

Examples of exceptions
  • same as email execution

Examples of exceptions
  • same as email execution unless the platform satisfies the eIDAS QES requirements and a QES is generated

 Additional conditions or considerations
  • email must include sufficient elements to establish consent

  • will not have the same evidential value as a wet-ink signature (although no practical differences)

Additional conditions or considerations
  • the jpeg must be unequivocally linked to the document to which consent is given

  • necessary authority to attach a jpeg signature (if not the signatory)

  • will not have the same evidential value as a wet-ink signature (although no practical differences)

Additional conditions or considerations
  • the ‘signature’ must be unequivocally linked to the document to which consent is given

  • IT/ cloud security requirements must be satisfied

  • same as email execution unless the signature is a QES in which case the applicable eIDAS QES requirements must be complied with

ChinaYes (subject to exceptions and conditions)Significant uncertainties as to whether jpeg pictures can be recognised as e-signatures so should not be usedYes (subject to exceptions and conditions)
 Examples of exceptions
  • if wet ink signatures are required, for example documents transferring interests in immoveable property and documents to be filed/registered with authorities

N/AExamples of exceptions
  • same as email execution

 Additional conditions or considerations
  • such signature may not be considered as an e-signature or wet-ink signature under PRC law and its evidential force, without other supporting evidence, may be weaker than wet-ink signature or e-signature

  • therefore, parties should agree that the contract can be executed or delivered by one or more counterparties (including by email) and each of which will be deemed an original; verify the sender of email; and keep clear records

N/AAdditional conditions or considerations
  • the data comprising the e-signature is owned and controlled exclusively by the signatory when e-signing (for example, the email account is verified to be exclusively controlled by the signatory)

  • e-signatures that satisfy the above requirement are considered to be ‘reliable’ e-signatures, which has strong evidential force equivalent to wet-ink signatures under PRC law. However, the contracting parties could agree other conditions for reliable e-signatures

Czech RepublicYes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)
 Examples of exceptions
  • if a written form of a document is required by statute, by the agreement between the parties or pursuant to the internal policies of one of the parties, it is not recommended to sign the document this way

  • documents requiring officially verified signatures (eg share purchase agreements in relation to shares in a limited liability company) and documents which need to be made in the form of a notarial deed (eg a memorandum of association of a joint-stock company or limited liability company) cannot be signed this way

Examples of exceptions
  • same as email execution

Examples of exceptions
  • same as email execution

  • however, documents that are required to be in written form can be executed using a platform where the platform complies with at least the eIDAS advanced electronic signature requirements and generates an advanced electronic signature

 Additional conditions or considerationsAdditional conditions or considerationsAdditional conditions or considerations
  • each party should confirm that the platform satisfies their own IT requirements and internal policies as to cloud access, cyber security and other requirements, including those related to the protection of personal data

England & WalesYes (subject to exceptions and conditions) (including deeds)Yes (subject to exceptions and conditions) (including deeds)Yes (subject to exceptions and conditions) (including deeds)
 Examples of exceptions
  • wet ink signatures are required for documents filed with the Land Registry

Examples of exceptions
  • same as email execution

Examples of exceptions
  • same as email execution

 Additional conditions or considerations
  • satisfaction of procedural signing requirements for example, deeds must be physically whole

  • any witness must be physically present and able to sign the attestation clause

Additional conditions or considerations
  • same as email execution

  • it is unlikely negotiable instruments can be signed electronically

  • necessary authority to attach a jpeg signature (if not the signatory)

Additional conditions or considerations
  • same as for jpeg signature

  • IT/ cloud security requirements of all parties must be satisfied

  • no requirement for the signature to be a QES

FranceYes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)
 Examples of exceptions
  • electronic means cannot be used for certain documents, such as private deeds relating to personal or real security, whether under civil law or commercial law, unless they are entered into by a person for the purposes of his or her profession

Examples of exceptions
  • same as email execution

Examples of exceptions
  • same as email execution

 Additional conditions and considerations
  • the parties must enter into a formal agreement (‘convention de preuve’) under which they agree on the use of email execution as a signing process

  • if there is no formal agreement, French case law provides that scanned signatures are insufficient to ensure the authenticity of the parties’ agreement, as they do not allow for clear identification of the signatories

  • it is common practice to have the whole document initialled on every page, although this is not mandatory

Conditions
  • same as email execution

Conditions
  • same as email execution (except in respect of initialling every page), unless the signature is a QES in which case the applicable eIDAS QES requirements must be complied with

GermanyYes (subject to exceptions and conditions)Yes if the agreement is silent or, if it is states written form is required, if expressly so agreed1Yes (subject to exceptions and conditions)
 Examples of exceptions
  • if required by statute to be in written (ie personal wet ink signature) or a stricter form, in particular notarial form, for example, a transfer or pledge of shares in a GmbH; a transfer of real estate; or a mortgage/land charge over real estate would require to be notarised

Examples of exceptions
  • same as email execution

Examples of exceptions
  • same as jpeg signature execution. However, documents that are required by statute to be in written form (ie personal wet ink signature) can be executed using a platform where the platform complies with the eIDAS QES requirements and generates a QES signature

 Additional conditions or considerations
  • the person relying on the signature will bear the full burden of proof that the signature is authentic if challenged

Additional conditions or considerations
  • same as email execution

Additional conditions or considerations
  • same as jpeg signature execution unless the signature is a QES in which case the applicable eIDAS QES requirements must be complied with

Hong KongYes (subject to exceptions and conditions) (including deeds)Yes (subject to exceptions and conditions)Not commonly used in Hong Kong but if used, then not applicable to:
  • any document on the exclusion list of the Electronic Transactions Ordinance (Cap. 553)

  • deeds

 Examples of exceptions
  • if wet ink signatures are required for example, the document is filed with the Land Registry

Examples of exceptions
  • deeds

  • documents that fall within the exclusion list of the Electronic Transactions Ordinance (Cap. 553), for example trust documents, powers of attorney, floating charges, documents relating to land

  • if wet ink signatures are required for example, the document is filed with the Land Registry

 Additional conditions or considerations
  • satisfaction of procedural signing requirements for example, deeds must be physically whole

  • any witness must be physically present and able to sign the attestation clause

Additional conditions or considerations
  • only for simple contracts not falling within the exclusion list of the Electronic Transactions Ordinance (Cap.553)

  • same as email execution

  • necessary authority to attach a jpeg signature (if not the signatory)

 
ItalyYes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)
 Examples of exceptions
  • none, provided the applicable provisions of Italian Legislative Decree no. 82 of 7 March 2005, as amended (‘CDA’) are complied with

Examples of exceptions
  • if an advanced, qualified or other electronic signature (under the CDA) is required. Examples include:

    • agreements transferring the ownership of immoveable property or establishing a lease for a term longer than nine years

    • deeds of incorporation of Italian joint- stock companies or limited liability companies

    • deeds of merger

    • agreements for the provision of banking and financial services

Examples of exceptions
  • same as jpeg signatures, unless the platform complies with the eIDAS or CDA requirements and generates, as applicable, an advanced, QES or other electronic signature

 Additional conditions or considerations
  • if the correspondence of the electronic document to the original document is challenged, the court will make an assessment regarding whether the electronic document does in fact correspond to the original document

  • the electronic document must be formed in accordance with the CDA

  • if the conditions above are met, the acts signed by email execution would have full evidentiary value (which limits the possibility of challenges to its evidential value)

Additional conditions or considerations
  • the evidentiary value of acts signed through jpeg signatures is freely assessable by the competent courts

Additional conditions or considerations
  • same as jpeg signature unless the applicable eIDAS QES or CDA requirements for an advanced, QES or other electronic signature are complied with in which case the document will have full evidentiary value (which limits the possibility of challenges to its evidential value)

JapanYes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)
 Examples of exceptions
  • where a wet ink signature or seal is required

  • documents required to be in written hard copy form, for example, security documents that are required to be perfected or validated and certain term lease agreements under the Act on Land and Building Leases

Examples of exceptions
  • same as email execution

Examples of exceptions
  • same as email execution

 Additional conditions or considerations
  • the Japanese E-Signatures Act recognises two types of electronic signature: ‘Certified E-Signatures’ and non-certified electronic signatures

  • email execution will result in a non-certified electronic signature which has lower evidential value than a Certified E-Signature

  • the validity of e-signatures has not yet been tested in Japanese courts

Additional conditions or considerations
  • same as email execution

Additional conditions or considerations
  • same as email execution

  • e-signatures produced by e-signing platforms would not be considered to be Certified E-Signatures, unless such e-signing platforms are certified under the E-Signatures Act and comply with the requirements of that Act including the use of specific software and satisfying the requirements for the provision of an e-certificate

  • Certified E-Signatures have the same effect as handwritten signatures. Under the Code of Civil Procedure, handwritten signatures are deemed to have been executed by the named person/entity with a true intention to execute such document

LuxembourgYes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)
 Examples of exceptions
  • if a wet ink signed document is required, for example, for contracts that create or transfer rights in real estate and contracts that require by law the involvement of courts, public authorities or professions exercising public authority

Examples of exceptions
  • same as email execution

Examples of exceptions
  • same as email execution unless the platform complies with the eIDAS QES requirements and generates a QES signature

 Additional conditions or considerations
  • the parties must validly consent to this method of execution and agree to exchange the executed documents in this manner

  • there are no concerns regarding the evidential value as the signatories signed by hand

  • the documents exchanged by email are copies only and not originals. However, the hard copy documents signed by the parties are originals and could be produced if required

Additional conditions or considerations
  • the Civil Code requires an electronic signature to:

    • identify the author of the act

    • demonstrate the author’s adherence to the contents of the act

    • guarantee the integrity of the act

    • it is unlikely that a jpeg signature will fulfil these conditions so it may not be recognised as a valid electronic signature for evidential purposes however, a jpeg signature will still be admissible in court

Additional conditions or considerations
same as jpeg signatures unless the signature is a QES in which case the applicable eIDAS QES requirements must be complied with. In such case the Civil Code requirements will be satisfied and the signature will have the presumption of authenticity
New YorkYes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)
 Examples of exceptions
  • the Electronic Signatures and Records Act (ESRA) excludes certain classes of documents from the general rule that electronic signatures and records are deemed the same as wet ink signatures and hard copy originals, including:

    • where a wet ink signature is specifically required by other law (for example, certain judicial, regulatory, registry, or other governmental filings or documents; two illustrative examples are: recorded real estate documents where the local recording office has elected not to accept electronic signatures and documents involved in bankruptcy cases where local rules require wet ink signatures)

    • negotiable instruments and other instruments of title (unless an authoritative electronic version is created that is unique, identifiable and unalterable and cannot be copied except in a form that is readily identifiable as a copy)

Examples of exceptions
  • Same as email execution

Examples of exceptions
  • Same as email execution

 Additional conditions or considerations
  • ESRA is technology neutral, so does not differentiate between methods of electronically signing for example, in terms of their evidential weight

  • the most essential element of a valid electronic signature is the intent of the signatory to sign the document in question. Absent this, the e-signature may be invalid

Additional conditions or considerations
  • as with email execution, intent is the touchstone. Where a party’s name is automatically affixed to an electronic document (such as by being automatically printed on each page), rather than purposefully attached under circumstances indicating an intent to be bound, it may not constitute a valid e-signature

  • the affixation of the jpeg signature to the electronic document must be performed by an authorised signatory

Additional conditions or considerations
  • establishing the purported signatory’s exclusive control over the e-signature account used to execute the document has emerged as an issue in common law cases arising in other states

SingaporeYes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)
 Examples of exceptions
  • the Exclusion List set out in the Electronic Transactions Act (Cap. 88) (the Act) includes negotiable instruments, documents of title, bills of exchange, indentures, declarations of trusts, powers of attorney and contracts for the sale or other disposition of immoveable property

Examples of exceptions
  • same as email execution

Examples of exceptions
  • same as email execution

 Additional conditions and considerations
  • satisfaction of procedural signing requirements required by the Act

  • where deeds are concerned, a witness must be physically present and able to sign the attestation clause

  • as the legal position on electronic execution of deeds is unsettled, it is preferable to avoid electronic execution of deeds

Additional conditions and considerations
  • same as email execution

Additional conditions and considerations
  • same as email execution

  • an electronic signature generated by an e-signing platform can amount to a Secure Electronic Signature under the Act. A Secure Electronic Signature is afforded an additional level of protection for a contracting party in the form of several presumptions in any proceedings involving such a signature

  • to amount to a Secure Electronic Signature, the electronic signature must satisfy verification requirements set out in the Act

SlovakiaYes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)
 Examples of exceptions
  • if a written form of the document is required by law, a contractual arrangement or the internal policies of one of the parties, it is not recommended to sign the document this way

  • documents which need to:

    • be made in the form of a notarial deed

    • be apostilled or are subject to super-legalisation

    • be made in the presence of a notary public or witnesses


cannot be signed this way
Examples of exceptions
  • same as email execution

Examples of exceptions
  • same as email execution, except for documents signed by a QES

  • documents that are required to be in writing can be executed using a platform if the platform complies with the eIDAS QES requirements and allows for a QES signature to be created

  • if a verified signature is required (eg for an agreement on transfer of an ownership interest in a limited liability company), the document must be signed by a QES and the signatory must attached a qualified time stamp to it

 Additional conditions or considerations
  • if the document is to be filed with an authority, it should be checked whether the relevant authority accepts documents in electronic form and, if so, in what format

Additional conditions or considerations
  • same as email execution

Additional conditions or considerations
  • same as email execution

  • each party should confirm that the platform satisfies their own IT requirements and internal policies as to cloud access, cyber security and other requirements, including those related to the protection of personal data

SpainYes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)
 Examples of exceptions
  • if wet ink signatures are required, for example, certain negotiable instruments

  • documents that need to be raised to the status of public deed by a notary public, and/or entered in the relevant public Registry, or any other formality is required

  • certain commercial contracts in Spain are raised to the status of public deed for different reasons usually to certify evidence of capacity and validity and because public deeds are considered executive title for enforcement purposes

Examples of exceptions
  • same as email execution

Examples of exceptions
  • same as email execution

 Additional conditions and considerations
  • satisfaction of procedural signing requirements established in the contract

Additional conditions and considerations
  • satisfaction of procedural signing requirements established in the contract

  • only a QES has a presumption of authenticity if judicially challenged. For non QES electronic signature, the court will take into account the terms of any agreement between the parties to use an electronic signature when determining the authenticity of the signature, however, there must be sufficient evidence for the court to recognise authenticity

Additional conditions and considerations
  • same as jpeg signatures

  • IT/ cloud security requirements must be satisfied

  • if the signature is a QES and the applicable eIDAS QES requirements have been complied with it will have the presumption of authenticity

The NetherlandsYes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)
 Examples of exceptions:
  • documents which by law require the intervention of a court, a public authority (for example, a civil law notary) or a professional who exercises a public function, for example notarial deeds such as a deed of transfer of shares or real estate

  • documents which by law require a QES, for example documents which require an electronic signature under the Land Register Act, electronic insurance policies and electronic arbitral awards

Examples of exceptions:
  • same as email execution

Examples of exceptions:
  • same as email execution unless a QES signature is required and the platform complies with the eIDAS QES requirements and generates a QES signature

 

Additional conditions and considerations

  • while a QES constitutes binding evidence, simple electronic signatures and advanced electronic signatures only constitute binding evidence if, for each such signature, the signing method is sufficiently reliable, taking into account the purpose for which the signature is used and all other relevant circumstances
  • if a simple electronic signature or advanced electronic signature is not considered by a court to constitute binding evidence, such signature is nevertheless admissible in evidence provided that the relevant procedural requirements are complied with

Additional conditions and considerations
  • same as for email execution

Additional conditions and considerations
  • same as for email execution

  • where a QES signature is required the platform has to comply with the eIDAS QES requirements in order to generate a QES

UAE (including DIFC—this analysis does not cover the Abu Dhabi Global Market (ADGM) which presently has not enacted specific legislation dealing with e-signatures)Yes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)Yes (subject to exceptions and conditions)
 Examples of exceptions
  • if wet ink signatures are required for example, the document is required to be notarised or the document relates to the sale, purchase or lease of immoveable property
Examples of exceptions
  • same as email execution

Examples of exceptions
  • same as email execution

 Additional conditions and considerations
  • satisfaction of procedural signing requirements

Conditions and considerations
  • satisfaction of procedural signing requirements

  • necessary authority to attach a jpeg signature (if not the signatory)

  • it will be for the UAE Courts and/ or the DIFC Courts (as the case may be) to decide, in a particular case, whether a jpeg signature has been correctly used and what weight it should be given (for example in relation to the authentication or integrity of a message) against other evidence. The area is untested

Conditions and considerations
  • in the UAE, IT/ cloud security requirements must be satisfied and authentication is established on a graduated scale depending on the platform. However, it remains unclear as to whether an e-signature platform would require certification (as to the authenticity of the security used for the platform) under UAE law. The DIFC law does not prescribe specific IT/cloud security requirements for e-signing platforms. However, best practice would suggest robust IT/cloud security systems are in place

  • it will be for the UAE Courts and/ or the DIFC Courts (as the case may be) to decide, in a particular case, whether an e-signature has been correctly used and what weight it should be given (for example, in relation to the authentication or integrity of a message) against other evidence. The area is untested

This article by Clifford Chance LLP first appeared on Clifford Chance in March 2020. The views of our Legal Analysis interviewees are not necessarily those of the proprietor.

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