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  • Intellectual property framework

    Overview

    Protection of intellectual property rights is required by the Federal Constitution and by several multilateral treaties. The main statutes in this area are federal statutes. However, in case of litigation, some matters are subject to federal jurisdiction, and others to provincial jurisdiction.

  • Commercial contract framework

    Overview

    Commercial contracts are governed by the Civil and Commercial Code. This code came into effect in 2015 and it replaces the previous separate Civil Code and Commercial Code. It is part of the federal legislation, but jurisdiction regarding its implementation and litigation resulting thereunder corresponds primarily to the provincial courts.

    The Civil and Commercial Code includes general provisions on contracts, which are applicable to all contractual transactions. These provisions govern matters such as the formation of contracts, offer and acceptance, possible subject matter of contracts, legal formalities, the legal effects of contracts, contract termination and others.

    In addition, the Civil and Commercial Code includes provisions applicable to specific types of contracts, such as sale agreements, leases, franchise agreements and agency agreements. More than 30 types of agreements are subject to specific provisions of this kind. These specially regulated agreements are thus subject to the general rules applicable to contracts –described above – and to the special rules applicable to the relevant type of agreement. Agreements that are not subject to special rules are nevertheless valid, and they are governed primarily by the general contract rules and – to the degree possible – by the rules applicable to analogous specially regulated contracts.

    Other laws include provisions on specific types of commercial contracts. For instance, the Copyright Law includes certain provisions of contracts related to software and to publishing; the Patent Law includes rules on license agreements; and the Insurance Law includes rules on insurance contracts. However, in all these specially regulated contracts, the general contract law rules included in the Civil and Commercial Code are also applicable.

    Commercial contracts with the federal or provincial governments or with other governmental entities are also governed by administrative law. Special rules on contracts with state entities have been included in federal or provincial laws, or have been developed by case law.

  • Copyrights

    Nature of right

    Copyright protects intellectual creations in all fields of science, art and literature. Article 1 of the Copyright Law includes a non-exhaustive list of possible intellectual works protected by copyright. These include, among others, literary and artistic works, music, architectural works and software.

    Copyright protects intellectual expressions, but not ideas. For example, the contents of a book in terms of sentences and other literary expressions are protected by copyright, but the creative idea underlying the book as a whole is not.

    Copyright results from the creation of an intellectual work. Registration is not necessary for copyright to exist, although it is necessary for the exercise of some rights by local authors. Upon creation of a protected work, copyright belongs to the original author or authors, who then may transfer their right, by contract or by the operation of certain legal rules.

    Copyright includes economic and moral rights. Economic rights consist, basically, in the exclusive right to use and exploit the protected work. The Copyright Law lists some of the elements of this exclusive right, such as the right to reproduce the relevant work, to market copies, to prepare derivative works or to have the work performed publicly.

    Moral rights include the so call "integrity right" – that is, the right to preserve the text, title and other contents of the work, even if property rights on such work have been assigned; the "paternity right," the author’s right to be named and identified as such together with the work; the "publication right," the right to decide whether the right will be published; and the "alteration right," the right to modify the work, even after it has been published. Moral rights belong to the author and they are generally non-assignable.

    Legal framework

    Copyright law is included in Law 11, 723, as amended. In addition, multiple laws and regulations govern matters such as related rights, publishers' rights and collective management societies.

    Argentina is part of the main multilateral international copyright agreements, such as the Trips Agreement, the Berne Convention and the Rome Convention. The provisions of these agreements are actively enforced by the courts.

    Duration of right

    The general rule is that copyright protection lasts for a term of seventy years, counted as of January 1 of the first year after the death of the author, as well as through the life of the author.

    In the case of work done through cooperation, the 70-year term is computed from the death of the last person who participated in the joint authorship of the work involved.

    In the case of posthumous works, the 70-year term is computed from the death of the author.

    The duration of protection of anonymous works whose copyright belongs to institutions, corporations or legal entities is 50 years from the date of publication of the work.

    Special rules on copyright duration apply to specific types of copyrightable works, such as photographs and cinematographic works.

    Ownership / licenses

    The basic rule is that ownership belongs to the author. Special rules have been developed in connection with special types of works, such as cinematographic works, derivative works and software.

    There are several types of joint ownership. It may apply to works done through cooperation, which imply a creative collaboration between different authors; to collective works, which are those created through the initiative or direction of one or more individuals, who coordinate or direct the efforts of several other individuals to achieve a joint result; and to composite works, which are the result of adding different separate works, each with a possible separate author and owner, into one final result.

    Works created by employees who have been hired for that purpose belong to the employer.

    Copyright may be subject to licenses, generally as part of broader contractual arrangements such as publishing agreements.

    Remedies for infringement

    Damages may be claimed before civil courts for all types of copyright violation. Registration of works is not necessary, except for local authors, whose rights may be suspended until registration takes place.

    It is also possible to file civil action to prevent further copyright violation, and to obtain preliminary remedies, such as injunction, in the course of civil procedures.

    Criminal remedies, particularly fines, are possible, but are not frequently applied.

  • Mask works / topographies

    Nature of right

    Mask works and topographies are not separately protected under Argentine law. They may be protected under patent law or by way of confidentiality.

    Legal framework

    Argentina has enacted no specific rules on chip protection. Although Argentina is part of the WTO and has approved the Trips Agreement, it has not yet implemented any rules on chip protection.

    The provisions on chip protection included in the Trips Agreement have not been deemed immediately applicable under Argentine law. In addition, Argentina has not ratified or implemented other multilateral treaties on chip protection, in particular the Treaty of Washington of 1989.

    Semiconductor technology, generally, and topographies, in particular, may be protected under the traditional intellectual property rules applicable to all types of technology, specially patent law and the rules on confidential information. Therefore, matters such as the duration of the relevant rights, ownership and remedies depend on the type of protection used in connection with each specific mask work or topography.

    Duration of right

    Not applicable for this jurisdiction.

    Ownership / licenses

     Not applicable for this jurisdiction.

    Remedies for infringement

    Not applicable for this jurisdiction.

  • Patents

    Nature of right

    Patents are a statutory right. The granting of patents is required by the Argentine Constitution and by different international documents, particularly the Trips Agreement. Patent rights imply an exclusive right to exploit a process or a product. The Argentine Patent Law defines the limits of these exclusive rights, on the basis of the provisions of the Trips Agreement.

    Legal framework

    Patents are governed by the Patent Law – Law 24,481, as amended. In addition, they are governed by the Trips Agreement and by the Paris Convention. Argentina is not a party to the Patent Cooperation Treaty.

    Duration of right

    The basic rule is that patents expire 20 years after the date in which the relevant patent application was filed. Argentina uses a "first to file" system, but it also applies the priority rules derived from the Paris Convention.

    Argentine law provides special rules on compulsory licenses and on patent termination due to lack of exploitation of the patented invention. Compulsory licenses may be granted in case of non-exploitation, competition law violations or sanitary emergencies, among other cases. Patent termination may result when, after a compulsory license was granted for lack of exploitation, no exploitation of the invention takes place for two years after the license was granted.

    Ownership / licenses

    Joint ownership is permissible. The Patent Law includes provisions on the exercise of patent rights by the joint owners. In addition the Civil and Commercial Code rules on joint property apply to patents.

    The Patent law includes rules on licenses. Licenses are not exclusive, unless the parties provide otherwise. Competition law rules are applicable to restrictive clauses included in license agreements.

    Remedies for infringement

    The Patent law provides both civil and criminal law remedies for cases of infringement.

    Civil remedies include the compensation of damages and termination of the infringing activities.

    A complex system of rules for preliminary remedies in patent cases is included in the Patent law. Generally, suspension of an alleged infringer's exploitation requires a preliminary procedure, with the participation of expert witnesses.

    Criminal procedures and sanctions are rare.

  • Trademarks

    Nature of right

    A trademark may consist of one or more words, with or without conceptual content, drawings, commercial symbols, monograms, engravings, prints, seals, images, stripes, color combinations, letter and number combinations, the special graphics of letters and numbers, advertisement phrases, reliefs, and any other sign with distinctive capacity.

    A trademark is normally protected by means of its registration. However, de facto trademarks, that is those that are used but not registered, are also protected in a more limited way.

    Legal framework

    Trademarks are governed by the Trademark Law – Law 22,362, as amended.

    In addition, trademarks are protected by the rules included in Trips Agreement and in the Paris Convention.

    Duration of right

    Registered trademarks are protected for a period of ten years, from the moment of registration. Trademark registration may be renewed indefinitely.

    Registration may be cancelled for lack of use during a period of five years. In addition, renewal of registration requires proof of the trademark's prior use.

    Ownership / licenses

    Ownership is acquired by means of registration. However, use of unregistered trademarks may result in certain rights for the user.

    Trademarks may be subject to joint ownership. The Trademark Law and the Civil and Commercial Code provide the rules applicable to these joint ownership relationships.

    Trademark licenses are possible. They are valid even if they are not registered with the trademark office.

    Remedies for infringement

    The Trademark Law provides both civil and criminal law remedies for cases of infringement.

    Civil remedies include the compensation of damages and the termination of the infringing activities.

    Special preliminary remedies are applicable in cases of trademark infringement. The trademark owner may obtain an injunction against the infringer, when the trademark is registered and its violation is immediately evident.

    Criminal law remedies are rarely used in practice.

  • Trade secrets

    Nature of right

    Argentine law provides protection for trade secrets and confidential information. A complex set of rules creates rights against conduct whereby access is gained illegally to confidential information, or which implies illegal use of trade secrets or confidential information or which results in the unauthorized and harmful disclosure of confidential or secret information.

    Confidential information is characterized by the fact that it is kept in a reserved manner and that it is not generally available for technicians working in the relevant technical field. Trade secrets receive a special degree of protection, particularly under criminal law.

    Legal framework

    Confidential information is governed and protected by Law 24,766. It is also protected by the Trips Agreement and by the Paris Convention.

    In addition, multiple rules and statutes protect confidential information and trade secrets. Labor law protects the confidentiality and ownership of information used in employment relationships.

    Several criminal law rules apply to special types of violations of confidentiality. In particular, disclosure of trade secrets and unfair competition by means of the illegal use or appropriation of trade secrets are subject to criminal law penalties.

    Duration of right

    Confidential information and trade secrets is protected for as long as the relevant information is kept confidential. The degree of protection diminishes if the information ceases to be objectively a secret, due to its previous disclosure or because it has been obtained independently by other parties.

    Ownership / licenses

    Ownership results from the obtention of the information, accompanied by legal or practical measures aimed at restricting access to that information by third parties. No registration requirement is applicable.

    Joint ownership is possible.

    Trade secret or know-how licenses are common and enforceable.

    Remedies for infringement

    Argentine law provides civil and criminal law remedies for cases of trade secret infringement.

    Damages caused by these violations must be compensated. It is also possible to obtain court orders requiring termination of the violation.

    Preliminary remedies include injunctions against further exploitation or disclosure of trade secrets.

    Criminal remedies are applicable in cases of disclosure of trade secrets acquired in the course of employment and other professional relationship, as well as in cases in which the violation of the rights to confidential information or trade secrets results in unfair competition.

  • Other key IP rights

    Nature of right

    Industrial designs

    Industrial models and designs are protected by special industrial property rights. An industrial model or design consists in the forms embodied in or the aspect applied to an industrial or artisan product, which confer an ornamental character to such product.

    Exclusive rights on industrial models and designs result from registration of the relevant model or design.

    Industrial designs

    Industrial designs

    Legal framework

    Industrial designs

    Industrial models and designs are protected by Decree 6673/1963, as amended. They are also protected in accordance with the Trips Agreement and the Paris Convention.

    Duration of right

    Industrial designs

    The rights derived from the registration of an industrial model or design last for a five-year period, counted from the date of filing of the relevant application. The registration may be renewed for two successive five-year period, if the owner requests such renewal.

    Ownership / licenses

    Industrial designs

    Ownership belongs to the author. There is a rebuttable presumption to the effect that the first applicant of an industrial model or design registration is the author of such industrial model or design. Joint ownership is possible, and is governed by the Civil and Commercial Code and by Decree 6673/1963 as amended.

    Industrial models or designs may be the subject matter of license agreements. No registration is necessary for the validity of these agreements.

    Remedies for infringement

    Industrial designs

    Civil and criminal law remedies are applicable in case of infringement. Civil remedies include the compensation of damages and termination of the violation.

    Preliminary injunctions and remedies are possible in accordance with general procedural rules.

    Criminal sanctions have been recently reinforced, but they are rarely applied.

  • Intellectual property in employment context

    Employees

    Special rules on employee inventions are included in the Patent Law and in the Labor Contract Law.

    There are basically three types of invention, from the perspective of employer-employee relationships. First, inventions made in technological areas for which the employee was hired as a researcher or developer belong to the employer. The employee may be entitled to a special compensation if he or she develops a patented invention which exceeds the normal scope of the employee's work. Second, inventions related to the employee's work or related to the employer's know-how or activities belong to the employee, but allow the employer to exercise an option to acquire rights over the invention. If the option is exercised, the employee is entitled to a payment reflecting the value of the invention. Third, inventions that do not fall into the two previous categories belong to the employee.

    Similar rules are applicable in the case of other types of technology or intellectual property rights. In the case of software, the law applies the “work for hire” doctrine, but allows the parties to agree to different contractual rules.

    Consultants / contractors

    The law is not explicit about the rights of consultants and contractors, who do not qualify as employees, with regard to technology and other intellectual property they develop. Generally, the parties may agree as to the rules which will apply to such rights. In the absence of a contractual framework, the technology or intellectual property generated by a consultant or contractor who was hired with the purpose of developing such items that will belong to the person paying for such work.

  • Key commercial contract considerations

    Registration of commercial agreements

    The general rule is that commercial agreements are not registered, and that their validity and effect is not subject to registration requirements. However, certain types of agreement must be registered to be effective or to have full effects against third parties. Agreements subject to registration include business association agreements, certain publishing agreements, certain chattel mortgages and certain agreements related to real estate. International transfer of technology agreements are subject to registration for tax purposes.

    Recognized language of commercial agreements

    Agreements are generally entered in Spanish. However, it is legally possible to enter agreements written in other languages. These agreements must be translated when presented in court. Spanish language may be necessary in consumer transactions.

    Country-specific issues for online content

    Argentina has ratified the WIPO conventions applicable online content and practices. However, enforcement of these conventions is weak.

    Enforceability of online/clickwrap/shrinkwrap terms

    The general rule is that acceptance of terms included in online, click wrap or shrink wrap elements is valid and effective, provided such acceptance is clearly stated and applies to terms that were known to the person giving the acceptance. However, several rules may limit the effects of agreements entered by these mechanisms, particularly consumer protection rules and rules on adhesion contracts.

    Governing law

    The basic rule is that the parties may agree as to the law that will govern their contractual rights and as to the applicable jurisdiction in case of dispute. This freedom of election is subject to several limitations. Non-Argentine law will not be enforced in Argentine courts if it  is contrary to Argentine public policy. Also, certain matters are necessarily governed by Argentine law. For example, if a business association is created in Argentina, its organization and other corporate aspects will be governed by Argentine law. Decisions made by non-Argentine courts or arbitration tribunals are enforceable in Argentina only after going through a special procedure before the Argentine courts, in the context of which the decision will only be enforced if it complies with certain rules, particularly not violating Argentine public policy. In addition, certain matters – ie, deciding the validity of a patent issued in Argentina – are necessarily subject to Argentine jurisdiction.

  • Key commercial contract terms

    Enforceability of warranty disclaimers

    Argentine law provides certain warranties, generally applicable to all types of contracts implying the transfer of rights. These warranties apply, in particular, to the validity of the rights being transferred and to the fitness of the goods regarding which rights are transferred.

    The general rule is that these warranties may be limited or eliminated by agreement between the parties. However, these disclaimers are totally or partially invalid in several types of cases: if the transferor had prior knowledge of the invalidity of the transferred rights or of the deficiency of the goods involved; if the transferor is a merchant and the parties waiving his or her rights are not; and if the warranty disclaimer is included in a consumer or adhesion contract.

    Enforceability of exclusions/limitations of liability indemnification

    Exclusions or limitations of liability indemnification are valid if they meet the general conditions applicable to contractual. However, they may be unenforceable in the following cases: when they extend to willful violations or defaults, or to violations or defaults resulting from gross negligence; when they are imposed in adhesion or consumer contracts; or when they result in the violation or annulment of rights that may not be removed or limited contractually.

    Indemnification

    The basic rule under Argentine law if full indemnification of economic or moral damages caused by illegal conduct, whether that conduct constitutes a contractual or a tort violation.

    The parties are free to include contractual rules as to the extent of their indemnification obligations.

    Penalty clauses and liquidated damages clauses are acceptable, but they may be limited or amended by the courts if their terms are deemed abusive.

    In the absence of contractual provisions, the indemnification's extent will depend on circumstances such as the willful or negligent nature of the violation, foreseeability of the damages caused and the comparative fault of the parties.

    Electronic signatures

    Electronic signatures are valid and effective under Argentine law. However, certain legal effects require that the signature comply with a special certification regime.

  • Key contacts
    Guillermo Cabanellas
    Guillermo Cabanellas
    Senior Partner DLA Piper (Argentina) [email protected] T +5411 41145500 View bio

Key commercial contract terms

Electronic signatures

Argentina

Electronic signatures are valid and effective under Argentine law. However, certain legal effects require that the signature comply with a special certification regime.

Australia

Electronic signatures are acceptable and enforceable in Australia in most instances in which the law requires a signature. Electronic signatures are valid if they are a method that identifies the person who is signing and indicates the person's intention with respect to the information communicated (eg, that the person agrees to the terms of a contract). The method of providing the electronic signature must generally be as reliable as appropriate for the purpose for which the electronic communication was given. Some laws exclude the use of electronic signatures in particular instances. Where documents as executed as deeds, certain additional requirements may apply (eg, that execution needs to be witnessed and the deed must be printed on paper, parchment or vellum) mean there is a degree of uncertainty about whether deeds can in all instances be validly executed using electronic signatures. 

Austria

In Austria, the implementation of Regulation 910/2014 on electronic identification and trust services for electronic transactions in the internal market, which also repealed Directive 1999/93 concerning electronic signatures has been effectuated by the Signatures and Trust Services Act (Signatur- und Vertrauensdienstegesetz).

Generally, a qualified electronic signature equals a handwritten signature and has the same legal effects as any written signature, unless the parties agree otherwise. According to the "non-discrimination-rule" in the Signatures and Trust Services Act, any documents signed with an electronic signature in general have to be equally accepted as evidence in the court.

There are some exceptions when electronic signatures are not acceptable – for example, surety agreements, last will and some other declarations in the area of family and inheritance law.

Belgium

Until mid-2016, the use of electronic signatures in the European Union was governed by Directive 1999/93 on a Community framework for electronic signatures (E-Signature Directive) as transposed into the national laws of 28 member states of the European Union. In Belgium, the E-Signature Directive was implemented by the Act of July 9, 2001 laying down a legal framework for electronic signatures and certification services.

The Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (Regulation) was adopted in July 2014, and has been effective as of July 1, 2016. This Regulation aims to provide more predictable regulatory environment and is directly applicable in all member states of the European Union without having to be transposed in national legislation.

The Regulation has a two-tier approach. This means that all electronic signatures, ie, "data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign," receive some legal recognition, but only so-called "qualified" electronic signatures are automatically assimilated with handwritten signatures. Thus, in case of a dispute, it will be up to the competent court to decide whether a "non-qualified" electronic signature can be assimilated with a handwritten signature. The Regulation does not preclude member states from deciding that, in certain circumstances, only specific types of electronic signatures, such as qualified electronic signatures, can be used.

Under Belgian law, certain types of contracts (such as real estate contracts, certain contracts of suretyship, contracts in the field of family law) cannot be concluded by electronic means.

The new law of February 15, 2018 introduced additional changes to the use of electronic signatures in the field of employment law so as to provide a more flexible regime for concluding employment contracts, in line with the flexibility offered by the Regulation.

Brazil

Electronic signatures are generally considered enforceable under Brazilian law. In 2001 Provisional Executive Act 2.200-2 (Electronic Signature Law) established a validity of the digitally signed documents. The Brazilian Public Key Infrastructure (ICP-Brazil) was created in accordance with the Electronic Signature Law. The Electronic Signature Law established the legal validity for ICP-Brazil certificates-based digital signatures, which are based on the use of public and private cryptographic keys. However, valid electronic signatures can be created outside of ICP-Brazil system, if such signatures follow certain minimum parameters of validity (eg, authorship and integrity).

Generally, commercial contracts can be executed electronically as well as in writing or verbally, provided that the essential criteria for formation and validity are met and parties are in accordance with such means of signature. However, certain agreements and transactions still have to be in writing (ie, real estate sales, collateral agreements and family law transactions) and registered within its specific registries.

Canada

Many contracts in Canada have no particular signature requirements. Accordingly, written signatures, electronic signatures and secure electronic signatures are all generally enforceable, and no particular form of signature is required. For example, a signature may consist of one or more letters, numbers or other characters.

There may, however, be issues regarding the identity of the signing party, or the integrity of the contract being signed. These issues can often be addressed using secure electronic signatures. Furthermore, the federal government and many provinces have enacted legislation giving recognition to electronic signatures, although in some cases certain documents (such as wills, trusts, powers of attorney and land transfers) cannot be signed electronically.

Chile

There is no IP regulation regarding electronic signatures.

Law No. 19,799 on electronic documents deems electronic signatures valid, whenever they are issued by certified electronic signatures providers.

According to Chilean Law, there are two valid electronic signature types: Simple Electronic Signature (FES) and Advanced Electronic Signature (FEA). Both of them are valid, and certify the identity of the signatory and other information such as the date or content of the document, depending on the type chosen.

China

Use and enforcement of electronic signatures are primarily governed by the PRC Electronic Signature Law. As a general principle, electronic signatures can be used in documents in most types of civil activities, and such signatures will not be considered unenforceable solely because they are in electronic form.

China requires electronic signatures to satisfy certain requirements in order to be considered reliable and legally enforceable. In practice, the most common types of electronic signatures that have been held enforceable by the courts include:

  • Bank card information and password
  • USB key to a bank account and password
  • Online platform username and password

Colombia

Decree 2364 dated 2012 establishes that an electronic signature is any method that allows identification of a person regarding a data message, provided that it is reliable and appropriate for the purposes it is going to be used.

The electronic signature is reliable when:

  • the data that created the signature exclusively corresponds to the signatory and
  • it is possible to detect any unauthorized modification to the data message after it has been signed

An electronic signature is enforceable and has the same effect as an original signature if it is reliable and complies with the purpose for which it is being used.

Czech Republic

Electronic signatures are regulated by the Act No. 297/2016 Coll. On Services Creating Confidence for Electronic Transactions, which implements the EU Directive No. 910/2014/EC.

An advanced electronic signature (or "qualified electronic signature") is based on a qualified certification issued by an accredited certification services provider. Advanced electronic signature must be accepted by public administration bodies in the Czech Republic as the equivalent of a person’s handwritten signature.

A document (deed) in the electronic form that bears a qualified electronic signature is fully valid and enforceable and complies with all requirements imposed by the Czech Civil Code on the written form of a legal act.

Some Czech scholars believe that the written form is satisfied in case of a plain email, without an advanced or qualified electronic signature, and that such agreements are valid and enforceable. Such scholars note that under Section 562 of the Civil Code, the written form is preserved when an act is made in an electronic form or other technical form enabling (i) capturing the subject matter of the act and (ii) determination of the person acting. However, this position is not generally accepted.

In 2009, Czech authorities introduced the use of a data box for electronic communication between public authorities and individual users (that is, all Czech corporations and all individuals licensed to operate a business activity). A data box is a specific electronic site (uniquely allocated to a respective public authority, individual or corporate entity and password protected), which public authorities must use for delivery of all their communications addressed to those who have their own data boxes, instead of using traditional mail delivery in paper form. Individuals are generally free to decide whether they will send their communications with public authorities using data boxes or by mail/personal filing of paper documents. A document sent through a data box is presumed to be sent by the relevant data box holder and validity and enforceability consequently exist in respect of such communications.

Data boxes are an information system for electronic delivery, allowing for unambiguously identified and authenticated users to deliver a data message including attachments (any digital document) to the recipient and certify that the message has been received and the recipient has read it. The system of data boxes places a great emphasis on the user authentication. This system offers a state-guaranteed secure channel for communication between all users of data boxes, providing far higher quality security than the traditional email communication.

Denmark

It is possible to sign legally binding documents electronically by use of NemID. NemID is a personal digital signature that can be obtained by all people above the age of 15 who have a Danish social security number.

Finland

Electronic signatures are generally considered enforceable and equal to traditional hand-written signatures, provided that they have been made using a sufficiently secure and verified generation device or qualified certificate as stated in the Finnish legislation. As a rule, the generation device or qualified certificate is considered sufficiently secure, if it is in accordance with recognized European Union standards or an EEA located authority appointed for assessing the security requirements has approved it.

The Act on Strong Electronic Identification and Electronic Signatures regulates the requirements and acceptability set for electronic signatures in Finland.

Finnish legislation sets forth certain requirements on strong electronic identification methods (eg, bank identifiers, mobile certificates) that are accepted in public officials and not all international electronic identification services fulfill these requirements. However, multiple private service providers operating within Finland do fulfill the requirements set forth by the applicable legislation.

France

Under French law, an electronic signature has the same status as the handwritten signature provided that the technology utilized contains reliable means of identification and guarantees the link between the electronic signature and the act to which it is attached.

The reliability of this means shall be presumed when an electronic signature is created, when the identity of the signatory is assured and when the integrity of the act is guaranteed, under the conditions laid down by decree. This is a rebuttable presumption. The French decree 2001-272 dated March 30, 2001 defines three conditions of reliability:

  • A secure electronic signature
  • Created by a secure signature creation device
  • The signature verification shall be based on the use of a qualified electronic certificate

The choice of an electronic signature solution shall therefore take into consideration both technical and legal aspects of the relevant jurisdictions.

The European Parliament and the Council adopted Regulation (EU) No. 910/2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS Regulation) on July 23, 2014. This eIDAS Regulation – which creates a directly applicable and comprehensive legal framework for both electronic identification and authentication services – is in force since July 1, 2016. It abrogates and replaces the former directive on E-Signature, dated 1993, which had been the basis for the construction of the French law on electronic signature, via a complex set of legal texts.

In terms of inputs, the Regulation notably introduces a distinction between three types of signatures: "basic/standard", "advanced" and "qualified" signature. Clarification is however still expected as to the interrelation of these new types of signature with the pre-existing French definition of e-signature.

Germany

As a general rule, electronic signatures are legal, admissible and enforceable under German law. There are no formal requirements for a contract to be valid, unless explicitly mandated by law or agreed between the parties. If written form is prescribed by law, the document must be signed by the issuer with his handwritten signature pursuant to section 126 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). The written form may be replaced by electronic form, unless the law explicitly requires the written form (see section 126 (3) BGB). If the written form shall be replaced by electronic form, the issuer must add his name to such declaration and provide the electronic document with a qualified electronic signature (QES) in accordance with the Regulation (EU) No. 910/2014 of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS Regulation) and the German Act on Trust Services (Vertrauensdienstegesetz, VDG). Thus, the QES is a specific category of electronic signatures that have a specific legal effect in accordance with European electronic signature rules. In fact, the eIDAS Regulation, which has repealed the former Directive 1999/93/EC and, as a regulation, is directly applicable in all Member States, mainly differentiates between two forms of electronic signatures: the advanced electronic signature and the QES, subject to stricter legal requirements and highest technical security standards. Article 25 (2) of the eIDAS Regulation explicitly states that a QES shall have the equivalent legal effect of a handwritten signature whereas this is not the case for advanced electronic signatures. Furthermore, according to section 371a (1) of the German Code of Civil Procedure (Zivilprozessordnung, ZPO) private electronic documents that are provided with a QES dispose of the same probative value in legal proceedings as private documents.

To become QES, electronic signatures require qualified certificates that are created by specifically certified devices (so-called qualified electronic signature creation devices) that need to be certified by appropriate public or private bodies (qualified trust service providers).

However, when German law does not impose the written form or any other specific form of signature, any type of signature can be used, ie, even a simple electronic signature as regularly used in business e-mail correspondence.

Hong Kong

Electronic signatures are, in most circumstances, recognized and enforceable in Hong Kong. The Electronic Transactions Ordinance (Cap. 553) recognizes the validity of contracts which have been concluded electronically, with some exceptions (such as wills, negotiable instruments and contracts relating to land). Where a signature is required under law, as long as the method used is reliable and appropriate, and provided the parties agree to concluding the contract electronically, then a contract concluded electronically will have the same effect as a contract signed by hand. There are specific restrictions for contracts being entered into with government entities.

Hungary

Act 222 of 2015 sets out the General Rules for Trust Services and Electronic Transactions  (hereinafter referred to as Trust Services and Electronic Transaction Act).

Further procedural acts regulate the enforceability of electronic signatures, such as Act CXXX of 2016 on the Code of Civil Procedure.

Electronic documents shall be considered to be valid if an electric signature or stamp is placed on such document in accordance with the Trust Services and Electronic Transaction Act. In line with the e-IDAS Regulation (Regulation 910/2014/EU) the electronic signature can be either:

  • Advanced electronic signature or
  • Qualified electronic signature

Advanced electronic signature shall mean an electronic signature that meets the following requirements:

  • It is capable of identifying the signatory
  • It is uniquely linked to the signatory
  • It is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his or her sole control
  • It is linked to the data signed therewith in such a way that any subsequent change in the data is detectable

A qualified electronic signature shall mean an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures.

It shall be noted that in family and succession law cases the exclusive use of electronic signatures and documents is not permitted.

Under the Code of Civil Procedure, when an electronic document is signed by an advanced or qualified electronic signature or stamp, that shall mean that such document corresponds with the requirements of written form and shall be considered not forged. If a private electronic document is signed by a qualified or advanced electronic signature or stamp, such document shall be considered a private document providing full evidence.

An electronic document made on a public document in a specific form by a body authorized to draft public document within its sphere of authority and executed by a qualified or advanced electronic signature or seal, and – if so prescribed by the relevant legislation – a time stamp shall have same probative force as the original paper-based public document.

If the electronic signature placed on the electronic document fulfills the above detailed requirements then it is valid and enforceable. In a court procedure an electronic document signed with a qualified electronic signature has the same probative value as a paper-based private document with full probative value.

India

The Information Technology Act, 2000 (IT Act) and the Indian Evidence Act, 1872 (Evidence Act) recognize the validity of electronic signatures. While under the IT Act a valid and enforceable digital signature is required to be issued by an approved certifying authority, in the manner prescribed under the Information Technology (Certifying Authorities) Rules, 2000 (Certifying Authority Rules), in practice, as long as the following conditions are met, an electronic signature would be considered valid and secure:

  • It is unique to the signatory
  • It can identify the signatory
  • It is created in a manner or using a means that is under the exclusive control of the signatory
  • It is linked to the electronic record to which it relates in such a manner that if the electronic record were altered, the digital signature would be invalidated
  • The information or matter to which it relates is rendered or made available in an electronic form
  • The information or matter should be accessible so as to be usable for a subsequent reference

Section 10A of the IT Act clearly states that contracts formed through electronic means are valid and enforceable before a court of law in India. It provides that where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, are expressed in electronic form or by means of an electronic record, such contract will not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose.

However, there are certain categories of contracts or documents that cannot be attested electronically. In accordance with the IT Act, the following contracts cannot be signed electronically:

  • A negotiable instrument (other than a cheque)
  • A power of attorney
  • A trust deed
  • A will or other testamentary documents
  • Any contract for the sale, conveyance or interest of an immovable property

Indonesia

EIT Law and further regulated by Government Regulation Number 82 of 2012 on the Implementation of Electronic Systems and Transactions (GR 82/2012).

Article 1 paragraph (12) of EIT Law defines electronic signature as a signature that contains electronic information that is attached, associated or related with other electronic information that is used for means of verification and authentication. Article 52 of the GR 82/2012 stipulates that the function of electronic signatures is to authenticate and verify:

  • The completeness and authenticity of the electronic information
  • Identity of the signatory

Furthermore, Article 53 of GR 82/2012 stipulates that electronic signatures in Indonesia will have legal force and legal effect to the extent satisfying the following requirements:

  • The electronic signature formation data shall be associated only with the signatories
  • The electronic signature formation data at the time of signing shall only be under the authority of the signatory
  • Any alterations to the electronic signature occurring after the signing can be known
  • Any alterations to the electronic information related to the electronic signature occurring after the signing can be known
  • There are certain methods adopted to verify the identity of the signatory and
  • There are certain methods to demonstrate that signatory has granted its consent to the associated electronic information

Pursuant to Article 54 of GR 82/2012, there are two types of electronic signature recognized in Indonesia, being:

  • The certificated electronic signature (made by using electronic certification service provider and can be proven with electronic certificate) and
  • The non-certificated electronic signature (made without using electronic certification service provider)

Article 58 of GR 82/2012 also provides that in Indonesia, before an electronic signature is used, the electronic signature operator shall be obligated to verify the identity of the signatory, by way of:

  • The signatory providing its identity to the electronic signature provider;
  • Signatory registers with the operator or supporting service of the electronic signature and
  • If necessary, the electronic signature operator may discreetly transfer the identity of the signatory to the other operators or supporting service of the electronic signature with signatory's consent

Ireland

The Electronic Commerce Act 2000 governs the use of electronic signatures in Ireland.

An electronic signature may be used provided the person or body to whom the signature is addressed consents to the use of the electronic signature. Where a signature to a document needs to be witnessed or where a seal is required to be affixed to a document, certain additional requirements apply including the requirement that an advanced electronic signature is used. Where the recipient is a public body, any information technology or procedural requirements imposed by that body must be complied with. There are also a number of exceptions under Irish law where an electronic signature may not be used such as:

  • Wills
  • Codicils
  • Trusts
  • Enduring powers of attorney
  • Documents under which an interest in real property is created, acquired, disposed of or registered, sworn affidavits and
  • Documents requiring a "wet ink" signature under law (such as prescriptions)

Under contract law, electronic signatures may have legal effect and be admissible as evidence in legal proceedings and are recognized as the functional equivalent of handwritten signatures.

Israel

Generally, Israeli law recognizes electronic signatures, except for certain inheritance-related documents that cannot be electronically signed. The Electronic Signature Law, 5761- 2001 (Law) amended in February 2018 expressly states that a signature will not be deemed inadmissible solely because it is an electronic signature – in other words, simple electronic signatures, such as copied and pasted PDF signatures or click-through consents, are now prima facie acceptable for evidentiary purposes (for the sake of clarity, they have always been sufficient for contractual purposes). Until this amendment, the Law only recognized the admissibility of two types of electronic signatures, both of which are required to comply with fairly stringent technological and bureaucratic standards: secure and certified, as detailed below.

An electronic signature is defined as a signature that is electronic data or an electronic sign that is attached to or associated with an electronic message.

A secure electronic signature should comply with the following requirements:

  • It is unique to the owner of the signing device (ie, a unique software, unique object or unique information required for producing a secure electronic signature)
  • It allows apparent identification of the owner of the signing device
  • It has been created using a signing device that is under the sole control of the owner of the signing device
  • It allows detection of any change to the electronic message subsequent to signing

A certified electronic signature is a secure electronic signature where the signing device used to produce it has been verified by a registered certification authority (there are two certification authorities in Israel:

  • Personal ID Ltd. (www.personalid.co.il)
  • Comsign Ltd. (www.comsign.co.il)

Prior to the 2018 amendment, any signature that was required by law had to be either a manual signature or a Certified Electronic Signature. The amended Law now allows the use of simple or Secure Electronic Signatures in almost all cases where a document is required to be signed, provided the type of signature used is adequate to fulfill, to a sufficient degree of certainty, the purposes of such requirement. This somewhat vague standard will need to be fleshed out by the  courts.

The Law deals with the evidentiary aspects of electronic signatures in Israel, but it is not the only piece of legislation dealing with the use of electronically signed documents and there is no comprehensive list of such items. Various rules and regulations govern specific uses of electronically signed documents, including rules pertaining to Companies Registry filings and rules pertaining to tax filings; most government agencies will not accept electronically signed documents.

As a general rule, documents that are required to be filed with various registries and governmental authorities are required to be manually signed, while those that apply only between the parties to the transaction can be electronically signed.

In addition, from a practical point of view the use of electronic signatures is impossible or inadvisable in the following instances:

  • Some companies and organizations, such as insurance companies, express a strong preference for manual signatures and may not accept electronic signatures
    • This would be determined by the internal policy of the specific entity in question
  • If the other party to the contract to be signed is known to be problematic for some reason (for instance, is known to have challenged contracts in the past), or if the ability to prove the validity of the contractual undertaking is of particular importance, it would be advisable to obtain a manual signature despite the fact that electronic signatures are acceptable, to prevent disputes as to whether or not the document has been properly signed

Italy

Legislative Decree 7 March 2005, no. 82 (the Digital Administration Code or CAD) provides a twofold legal regime for simple electronic signatures, and for advanced, qualified and digital electronic signatures. Indeed,

  • The suitability of an electronic document signed with a simple electronic signature (SES) to meet the requirement of written form and its probative value shall be freely assessed by the court, in relation to its own safety, integrity and immutability features
  • On the contrary, the electronic document meets per se the requirement of written form and is per se valid for proof when it is signed by way of a digital signature, another type of qualified electronic signature or an advanced electronic signature, or is created, following a electronic identification of its author, through a process meeting the requirements set by the Italian Digital Authority. 

Japan

Act No. 102 as of 2000 on Electronic Signatures and Certification Business (Act) provides details regarding the enforceability of electronic signatures of individuals. Under the Act, documents with electronic signatures that meet certain requirements are acknowledged as authentically created by the signatories and are admissible as evidence in civil litigation. Electronic signatures are also available for corporations. Electronic signatures have been used in both public and private sectors in Japan, such as tax filings, biddings and commercial transactions.

Luxembourg

Until mid-2016, the use of electronic signatures in the European Union was governed by Directive 1999/93 on a Community framework for electronic signatures (E-Signature Directive) as transposed into the national laws of 28 member states of the European Union. In Luxembourg, the E-Signature Directive was implemented by the Luxembourg E-Commerce Law of 14 August 2000.

The Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (Regulation) was adopted in July 2014, and has been effective as of July 1, 2016. This Regulation aims to provide more predictable regulatory environment and will be directly applicable in all member states of the European Union without having to be transposed in national legislation.

The Regulation has a two-tier approach. This means that all electronic signatures, ie, "data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign", receive some legal recognition but only so-called "qualified" electronic signatures are automatically assimilated with handwritten signatures. Thus, in case of a dispute, it will be up to the competent court to decide whether a "non-qualified" electronic signatures can be assimilated with a handwritten signature. The Regulation does not preclude member states from deciding that, in certain circumstances, only specific types of electronic signatures, such as qualified electronic signatures, can be used.

Mexico

Electronic commerce and electronic signatures are recognized and regulated by Mexican law for private transactions; electronic methods may be used for commercial acts and their formation and the consent may be expressed through electronic methods. The electronic signature is any electronic data comprised in or attached to a data message used in order to:

  • Identify the signatory in connection with the data message and
  • To indicate that person's approval of the information contained in the data message

The electronic signature produces the same legal effects as the handwritten signature and it is admitted as evidence in court.

Mexican law does not limit or restrict the electronic signatures to a particular format or tool. However, the data message shall contain information regarding the name of the signatory, in order to create a connection between the person and the electronic signature.

Pursuant to the provisions set forth in Article 93 of the Commerce Code, any commercial act required to be signed by the corresponding parties pursuant to the applicable laws, may be signed electronically by placing the electronic signature, as long as such electronic signature is attributable to the relevant parties and/or signatory persons. Furthermore, the information contained in the relevant data message shall be entirely conserved and kept as available for subsequent consultation.

Furthermore, an electronic signature may be considered advanced:

  • When the signature is exclusively in control of the signatory person and
  • When any modification to the original data message or electronic signature may be identified (ie, the password protected identification form, digital fingerprint, etc.), pursuant to the opinion issued by a Certification Agent in E-Commerce Matters

Netherlands

Pursuant to Dutch law, agreements are concluded by means of an offer and acceptance thereof. Agreements are generally valid if legally competent parties reach an agreement (irrespective of whether the agreement is concluded verbally, on physical paper or electronically). Electronic signatures are no different from handwritten signatures from an enforceability perspective. If the validity of a signature - whether electronic or not - is contested, the underlying agreement cannot serve as evidence of the agreement reached as long as the origins of the signature is not proven. For electronic signatures, this risk can be mitigated through the use of so-called  "qualified electronic signatures" as defined in the Electronic Identification and Trust Services Regulation 2014 (Regulation (EU) No 910/2014 (eIDAS Regulation).

Generally, commercial agreements can be concluded by means of a simple electronic signature (without authentication). Some contracts must be concluded in writing, such as the sale of a house to a non-professional party. Such contracts can also be concluded by electronic means, provided that all of the following requirements are met:

  • The contract is and remains accessible for the parties
  • Authenticity of the contract is sufficiently guaranteed (by electronic signature)
  • Moment on which the contract was formed can be determined with sufficient certainty
  • Identity of the parties can be assessed with sufficient certainty

Deeds that create or transfer rights in real estate require the involvement of courts, public authorities or professions exercising public authority and cannot be concluded electronically.

New Zealand

A legal requirement for a signature will generally be met by means of an electronic signature if that signature adequately identifies the signatory and their approval of the information to which the signature relates, and is as reliable as is appropriate given the context and the purpose for which the signature is required.

Norway

Norwegian general contract law is based on the principle that all agreements are binding irrespective of the form they are entered into. Norway has implemented the eIDAS regulation through the Act on dated 15.6.2018 No. 44.

Poland

Under Polish law, the following legal acts regulate electronic signatures: EU Regulation No. 910/2014 (eIDAS Regulation) and the Polish Acton Trust Services and Electronic Identification.

In the light of the eIDAS Regulation, there are two forms of electronic signatures:

  • Advanced electronic signature – an electronic signature that meets the requirements set out in Article 26 of the eIDAS Regulation:
    • It is uniquely linked to the signatory
    • It is capable of identifying the signatory
    • It is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his/her sole control
    • It is linked to the data signed therewith in such a way that any subsequent change in the data is detectable

According to Article 26 of the eIDAS Regulation, advanced electronic signatures may be used in public online services if an EU member state requires an advanced electronic signature to use an online service offered by, or on behalf of, a public sector body. In Poland, there are several specific regulations requiring the use of an advanced electronic signature within such public online services (such as customs law, etc.).

  • Qualified electronic signature – an advanced electronic signature that is created by a qualified electronic signature creation device and is based on a qualified certificate for electronic signatures. According to Article 25 of the eIDAS Regulation, a qualified electronic signature has the equivalent legal effect of a handwritten signature.

    Under the Civil Code, a declaration of intent made in electronic form (a declaration of intent with a qualified electronic signature should be treated as such) should be tantamount to a declaration of intent made in written form. A company is able to issue a qualified electronic signature if it is included in the Trusted List of qualified trust service providers which every EU member state maintains pursuant to Article 22 of the eIDAS Regulation.

The general rule under Polish law (ie, when no specific form is required by a specific legal provision) is that agreements may be concluded with any kind of electronic signature (including a signature that is neither advanced nor qualified, such as an e-mail signature). If written form is mandatory, a qualified electronic signature should be used because only this type of electronic signature has the equivalent legal effect of a handwritten signature. Agreements which require the form of a notarial deed cannot be concluded in electronic form (even with a qualified electronic signature).

Therefore, if a specific form (eg, written or notarial deed) for a particular contract is not required by the law, the contract may be concluded with any kind of electronic signature (ie, the signature does not need to be advanced or qualified in the meaning of eIDAS Regulation to be valid). 

Portugal

According to Portuguese law, a qualified electronic signature is equivalent to an autographic signature in paper documents. An electronic document shall only be deemed to be signed for purposes of evidence where it meets the requirements set by the law on electronic signature and certification.

Romania

Law no. 455 of July 31, 2001 regarding electronic signatures grants advanced electronic signatures the same legal standing as pen-and-paper signatures subject to the fulfillment of several conditions. To this end, an advanced electronic signature must be

  • Uniquely linked to the signatory
  • Capable of identifying the signatory
  • Created by means solely under the control of the signatory party
  • Linked to the data signed therewith in such a way that any subsequent change in the data is detectable

Russia

The requirements for electronic signature (ES) in Russia are regulated by Federal Law "On the electronic signature" dated April 6, 2011 (ES Law). Under ES Law, the electronic signature made on an electronic document is equivalent to a handwritten signature on an ordinary paper document. The electronic signature technically represents a number of symbols attached to an electronic document that is being signed and that identifies the signatory.

There are two types of the electronic signatures:

  • Simple electronic signature
  • Enhanced electronic signature.

Depending on the level of encryption protection, enhanced electronic signatures may be "unqualified" or "qualified".

A simple electronic signature is an electronic signature formed by the use of codes, passwords and other means that confirm the formation of the electronic signature by a particular person. As opposed to unqualified and qualified enhanced electronic signature, simple electronic signature is not produced by a certification center.

The ES Law states that any electronic message signed with a simple electronic signature is deemed to have the same legal effect as a paper document signed by hand, provided that:

  • The parties have expressly agreed to use electronic signature when exchanging messages through the relevant electronic messaging system
  • Rules established in the relevant electronic messaging system for use of electronic signatures are complied with
  • The electronic message contains information regarding the person on behalf of whom the electronic message was generated and/or sent
  • The parties' agreement on exchanging messages through an electronic messaging system must at least also contain provisions related to:
    • Identification of a person signing electronic messages based on its simple electronic signature
    • The parties' obligation to keep the means for generating the simple electronic signature (eg, codes, passwords) confidential

An enhanced electronic signature is produced by certification centers (accredited certified centers in case of qualified electronic signature) and shall be used in documents which require a seal. The enhanced electronic signature is more protected compared to the simple electronic signature, and its validity is subject to control by relevant certification centers. Enhanced electronic signatures are created by cryptographic processing of information by an electronic signature key and they help to identify the person that signed the document or made changes to such document.

The qualified type of enhanced electronic signature is even more protected and it has a specific qualifying certificate created by means approved by the competent state authority. The qualified type of enhanced electronic signature is produced by certified centers accredited by Ministry of Telecom and Mass Communications of the Russian Federation. The Ministry keeps a register of qualified electronic signature that can be accessed to verify such electronic signature.

Saudi Arabia

The Electronic Transactions Law (ETL), issued by Royal Decree No. M/8 and dated 26 March 2007, provides guidelines for the use of electronic transactions (defined broadly as "any exchange, communication, contracting or other procedure, performed or executed, wholly or partially, by electronic means") and electronic signatures (defined as "electronic data included in, attached to or logically associated with an electronic transaction used to verify the identify and approval of the person signing it and to detect any change to the transaction after signature"). The ETL in principle recognizes the legal effect of "electronic signatures" provided that certain conditions, requirements and specifications are met under the ETL and its Implementing Regulations (No. 1/1429 and issued on 18 March 2008). There are a number of documents and transactions to which the ETL does not apply (for example, transactions relating to personal status law, amongst others).

As there is no system of precedent and cases are not published as a matter of course, the extent to which a KSA court would enforce an electronic signature is uncertain, particularly if the veracity of such signature is challenged. Depending upon the circumstances, it may be prudent to have contracts/documents also physically signed on paper by the relevant parties.

Singapore

Electronic signatures are, in most circumstances, recognized and enforceable in Singapore. Save for excluded matters set out in the First Schedule of the Electronic Transactions Act (Cap.88) (such as wills, negotiable instruments and contracts relating to land), an electronic record or signature will not be denied effect by virtue of the signature being electronic. Where a signature is required under law, that requirement is satisfied in relation to an electronic record if a method is used to identify that person and indicate his intention in respect of the information contained therein and the method used is either:

  • Reliable for the purpose of the electronic record, considering all the circumstances
  • Proven in fact to have identified the person and indicate his intention in respect of the information contained therein

Slovak Republic

Under Slovak Act No. 272/2016 Coll. on Trust Services for Electronic Transactions in the Internal Market (Trust Services Act), as amended, qualified electronic signature is an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures.

With a qualified electronic signature, it is possible to electronically carry out legal acts, which require written form, ie, such electronic signature in this case replaces written form of a handwritten signature. Due to this reason, its usage is necessary in some acts performed within the communication with public authorities and the commercial sector.

Qualified electronic signature of an electronic document secures:

  • Authenticity (the identity of the subject creating the signature may be unambiguously verified)
  • Integrity (it can be demonstrated that after the signing the document, there was no intentional or unintentional change in the content of the document as it was at the time of signing the document)
  • Indisputability (the author cannot claim that he/she did not create the signature of the electronic document)

Slovak Act No. 305/2013 Coll. on the Electronic Form of Governance Conducted by Public Authorities (Act on e-Government), as amended, stipulates that if a legal act is performed under the law in an electronic form or if a special regulation requires a handwritten signature, the person who is not a public authority, shall carry out the authorization of such legal act by means of a qualified electronic signature.

South Korea

The Electronic Signature Act provides that an electronic signature has the same effect as a signature as agreed to between the parties. Therefore, such electronic document executed by an electronic signature will be valid and enforceable. In addition, under the Electronic Signature Act, if a certified electronic signature (ie, electronic signature that is based upon an authorized certificate) is affixed on an electronic document, it is presumed that such electronic signature is the signature of the relevant signatory and that there has been no alteration in the contents of such electronic documents after it was signed. However, such presumption does not apply to non-certified electronic signatures.

With respect to the signature, there is always a potential issue with verification of the authenticity of such signature. Also, under the same Act, if a certain document is required to be signed pursuant to certain legislation, then the electronic signature is deemed to meet the legal requirement when certified as such.

Spain

The use of electronic signatures is governed by Electronic Signature Act 59/2003. Regulation (eu) 910/2014 of the European Parliament and of the Council shall apply within the EU territory from July 1, 2016 (except for a number of provisions that are already in force or that will enter into force at a later date).

There are different types of electronic signatures:

  • Simple electronic signature, ie, data in electronic form which is attached to or associated with other electronic data and which serves as a method of authentication
  • Advanced electronic signature, which is:
    • Capable of identifying the signatory
    • Uniquely linked to the signatory
    • Linked to the data signed therewith in such a way that any subsequent change in the data is detectable
    • Created using electronic signature creation data that the signatory can use under his sole control
  • Qualified ("recognized") electronic signature, ie, an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures
    • A qualified electronic signature has the equivalent legal effect of a handwritten signature

Sweden

Swedish general contract law is based on the principle that all agreements are binding irrespective of the form they are entered into, unless mandatory laws specifically provide that a document must be signed in person. Hence, the use of electronic signatures is generally accepted.

Switzerland

Because most contracts under Swiss contract law do not require a specific form, generally the parties may validly execute contracts by exchanging electronic messages, provided that the parties and the contents of their respective messages are identifiable. This also applies in relation to choice-of-law provisions or jurisdiction and arbitration clauses, as far as the latter are based on electronic communication that can be evidenced by a text.

In addition, Swiss law provides for and recognizes a technical procedure which makes it possible to guarantee the authenticity of a document or an electronic message and to ensure the identity of the sender. The procedure is based on a certification infrastructure managed by third party providers.

If such third-party provider is further approved by an appointed authority, its issued electronic signatures are treated as equal to handwritten signatures. Thus, the procedure may be used for contracts that require a handwritten form. Nevertheless, this procedure is used very rarely in practice.

Taiwan

Except for some situations as specifically provide under Taiwan law, electronic signatures are generally recognized and enforceable in Taiwan as long as the parties concerned agree to conclude the contract electronically; the content of the contract can be presented in its integrity and remains accessible for subsequent reference; and the electronic methods used meet the requirements of the Electronic Signatures Act. A contract concluded as required by the Electronic Signature Act will have the same effect as a contract as physical paper and signatures. 

Ukraine

Electronic signatures are currently regulated by newly adopted Law of Ukraine "On Electronic Trust Services" dated October 5, 2017 which came into force on November 7, 2018. The new law is aimed at harmonization of Ukrainian legislation with EU regulations on this subject.

Effective Ukrainian legislation distinguishes among others on the use of electronic signature and qualified electronic signature. Only qualified electronic signatures have the same legal standing as handwriting signatures.

The qualified electronic signature is a type of the electronic signatures, generated in result of cryptographic transformation of set of electronic data to which this electronic signature relates, using the personal key uniquely associated with the signer, and which enables the electronic identification of the signer and to detect a violation of the integrity of the electronic data associated with this electronic signature; qualified electronic signature is based on a qualified public key certificate that is issued by a qualified trust service provider.

Currently non-residents of Ukraine cannot obtain electronic digital signature and electronic digital signature generated abroad is not accepted in Ukraine. However, the law provides terms recognition of qualified electronic signatures provided by foreign suppliers of electronic trust services in Ukraine. Namely, the foreign qualified trust service provider must meet the requirements of Ukrainian legislation (which must be confirmed by the Ministry of Justice of Ukraine) and the foreign qualified trust service provider must be included in the trust list of the country with which Ukraine has concluded a relevant international treaty. That being said, no such international treaty has been concluded so far.

The use of electronic signature, ie, graphic reproduction of the personal handwritten signature, will be permitted only if the parties have agreed in writing about such form of execution of the documents and if they attach the examples of such signatures to the agreement. In other cases, the use of the electronic signature may be unenforceable.

United Arab Emirates

Consent and acceptance to enter into a contract may be expressed electronically. Article 17(1) bis. Federal Law No. 10 of 1992 the Law of Evidence in Civil and Commercial Transactions as amended (Law of Evidence) provides that an electronic signature shall be "any electronic signature, any letters, figures, codes, signs, images or sounds having a unique character allowing for identifying the signatory and distinguishing him from others." Article 17(3) provides that electronic signatures may be afforded the same evidential weight as physical signatures if they comply with the provisions prescribed in the Electronic Transactions Law.

United Kingdom

The making of electronic contracts online is commonly accepted and there is no general prohibition at law to using electronic signatures to execute contracts. However, using electronic signatures can be difficult where there is a legislated set of formalities for executing contracts, such as in transactions involving the sale of real property or in the execution of deeds (including a deed of guarantee), and it is still commonplace for these agreements to be executed manually (in writing).

An electronic signature is widely defined under the Electronic Communications Act 2000 and can be anything that is incorporated into or associated with any electronic communication or electronic data for establishing the authenticity and/or integrity of that communication or data. Electronic signatures can be in a variety of forms, such as:

  • By typing the signatory's name in an electronic document or email
  • By scanning a written signature
  • By clicking on a button on a website
  • By using a signature made on a screen or entering some other form of digital signature that is unique to the signatory

Regardless of its form, it must be clear that the electronic signature is authentic and that the signatory intended to be bound by that communication or data. In 2018, the Law Commission in the UK launched a consultation which sought to address certain legal uncertainty surrounding the electronic execution of documents. The consultation closed on November 23, 2018 and, as at the date of writing, further information on the responses is awaited.   

United States

The Federal ESIGN Act grants electronic signatures the same legal standing as pen-and-paper signatures in transactions affecting interstate and foreign commerce. Certain exceptions under the ESIGN Act include the creation and execution of wills, codicils or testamentary trusts and transactions governed by the Uniform Commercial Code.

At the state level, the Uniform Electronic Transactions Act (UETA) governs business, commercial, consumer and governmental transactions in 47 of 50 states (except Illinois, New York and Washington), as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands. The UETA contains exceptions similar to those under the ESIGN Act. The states that have not adopted UETA have nonetheless adopted rules that validate and govern electronically signed contracts.