AUSTRALIA
Walter MacCallum, Russell Kennedy Lawyers
Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?
Unlike the EU, there is no legislated or government-endorsed list of trusted e-signature entities in Australia. However, various e-signature technologies are widely used, such as DocuSign.
Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.
Under common law, Australian courts broadly accept electronic signing. Each jurisdiction's ETA further clarifies this position. The ETAs differ slightly but generally, the electronic signing method used for most standard contracts should identify the signatory and indicate their intention to execute the document electronically. The signing technology used must also be "as reliable as appropriate" in the circumstances. Lastly, each signatory must consent to the other's electronic execution.
What is the legality of e-signatures in your jurisdiction? Are there key exceptions?
Australian law generally recognises that most contracts can be validly signed by electronic means. However, there are three main areas where electronic signing can be prohibited: deeds, signing by companies and witnessing. Some jurisdictions such as Victoria have allowed electronic signing of deeds and audio-visual witnessing due to COVID-19 while others have done so temporarily (e.g. NSW). Companies can also temporarily execute documents electronically until April 2022.
What is the e-signature law enforceable in your jurisdiction?
Electronic signatures are governed by the common law as well as the Electronic Transactions Act 1999 (Cth) and its equivalents in each state (the "ETAs"). Each state and territory also has its own Oaths and Affirmations Act which governs the electronic signing and witnessing via audio-visual link of wills, powers of attorney, affidavits and other significant documents. Recent changes to the Corporations Act 2001 (Cth) also temporarily allow the electronic execution of documents by companies.
HONG KONG
Colin Cohen, Boase Cohen & Collins
Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?
Currently two recognized digital certification authorities that may issue digital signature certificates for documents involving Government authorities - namely, the Postmaster General of the HKSAR and Digi-Sign Certification Services Limited.
With respect to other general documents (i.e. not involving the HKSAR Government), any form of E-signature is acceptable if it is attached or logically associated with the relevant document, considered reliable and agreeable by the parties involved.
Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.
E-signatures can be used for simple contracts/documents with the exception of those documents set out under Schedule 1 of the Electronic Transaction Ordinance (Chapter 553). The general exclusion include -documents relating to landed property, oaths and affidavits, negotiable instruments, trust documents, testamentary document (i.e. wills) and power of attorney.
E-signatures should be avoided for documents required for filing with Government authorities or require certification/notarization etc
What is the legality of e-signatures in your jurisdiction? Are there key exceptions?
Please see above
What is the e-signature law enforceable in your jurisdiction?
Electronic Transaction Ordinance (Chapter 553)
INDIA
Ramesh Vaidyanathan, Advaya Legal
Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?
The Office of Controller of Certifying Authorities in India issues license to Certifying Authorities (CAs). CAs in turn issue Digital Signature Certificates to end-entities. One can approach any one of the licensed CAs for getting a Digital Signature Certificate. The list of licensed CAs is available at http://www.cca.gov.in/licensed_ca.html
Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.
All types of contracts can be executed using electronic signatures except the following:
- a negotiable instrument such as a promissory note or a bill of exchange;
- a power-of-attorney;
- a trust deed;
- a will or any other testamentary disposition; and:
- a contract for the sale or conveyance of immovable property or any interest in such property.
What is the legality of e-signatures in your jurisdiction? Are there key exceptions?
Electronic signatures are legally recognised and admissible as evidence in a court of law as per the Indian Evidence Act, 1872. Please refer to our response to the above query for the exceptions.
What is the e-signature law enforceable in your jurisdiction?
The Information Technology Act, 2000 ("IT Act") provides the legal framework for electronic signatures in India, enabling them to have the same legal effect as physical signatures when done in the manner prescribed under the IT Act.
INDONESIA
Marshall Situmorang, Nusantara Legal Partnership
Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?
Yes. The Indonesian government maintains a list of certified e-signature providers, or also known as Electronic Certification Authority ("CA") which currently includes seven registered providers (full list accessible in: https://tte.kominfo.go.id/listPSrE/_)
Any documents that are e-signed using the listed CA shall have the same level of enforceability and admissibility as a wet-ink signature before the Indonesian court.
Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.
Indonesian law acknowledges 2 types of e-signatures i.e. Certified and Uncertified E-Signatures. The main difference between both types lies in the evidentiary value before the court. Generally Non-Certified e-signatures are relatively weak for evidentiary purposes. Non-Certified e-Signature must be able to be authenticated to be accepted by the courts as evidence.
Although the Indonesian Law generally accepts e-signature, it must satisfy certain conditions to be considered as valid and binding.
What is the legality of e-signatures in your jurisdiction? Are there key exceptions?
The use of e-signature is legal, admissible, & enforceable in Indonesia provided that it has met the conditions under the EIT Law. However, some documents must be signed with a wet-ink signature, including:
- documents that must be produced as notarial deed (e.g. Article of Association, shareholder resolution, etc) or land conveyancer; and
- documents that must be made in writing under the prevailing laws (e.g. negotiable instruments, letters used in the court procedural law enforcement process).
What is the e-signature law enforceable in your jurisdiction?
E-signature is currently regulated in Indonesia under the following regulations:
- Law 11 of 2008 on Electronic Information and Transactions, amended by Law 19 of 2016 ("EIT Law");
- Government Regulation 71 of 2019 on the Application of Electronic Systems and Transactions; and
- Minister of Communications and Informatics (""MoCI"") Regulation No. 11 of 2018 on Administration of Electronic Certification.
JAPAN
Mark Stockwell, Blakemore & Mitsuki
Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?
There are nine certification services that have been accredited
by the Japanese government.?However, accreditation merely indicates
that a certification service meets certain standards, and it is
possible to provide services without accreditation.?Since there is
no difference in the legal effect of e-signatures certified by
services without accreditation, many businesses provide services
without accreditation.
Foreign businesses can also be accredited by the Japanese
government.
Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.
Under Japanese law, most contracts can be executed with
e-signatures.
However, there are exceptions to this rule. For example, contracts
that require the creation of a notarized document (e.g., guarantee
contracts for loans and other debts incurred for business)?cannot
be executed with an e-signature.
E-signatures may also be used for corporate minutes and other documents. However, in the case of registration, the e-signatures that can be used are limited.
What is the legality of e-signatures in your jurisdiction? Are there key exceptions?
Contracts executed with an e-signature have the same effect as those executed in writing.
They can also be used as evidence in court.
What is the e-signature law enforceable in your jurisdiction?
- The main laws regarding e-signature are as follows:
- Act on Electronic Signatures and Certification Business
- Act on Dissemination and Promotion of Electronic Power of
Attorney
Commercial Registration Act
MALAYSIA
Caesar Loong, Raslan Loong, Shen & Eow
Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?
None.
Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.
Digital signatures use certified-based digital IDs to authenticate each signer's identity whereas electronic signatures are broadly defined as "any letter, character, number, sound or any other symbol or any combination thereof created in an electronic form adopted by a person as a signature".
Documents that qualify for use of e-signature is broad. These documents are ""electronic message"" which are information generated, sent, received or stored by electronic means under s.5 ECA.
What is the legality of e-signatures in your jurisdiction? Are there key exceptions?
Where the requirements under s.62 DSA are met, digital signatures shall be as binding as a document signed with a handwritten signature, an affixed thumb print or any other mark.
Where the requirements under s.9 ECA are met, electronic signatures shall be legally binding.
However, documents that require notarization or the affixation of seal cannot be electronically signed i.e. powers of attorney, wills and codicils, documents for creation of trusts and negotiable instruments.
What is the e-signature law enforceable in your jurisdiction?
E-signature laws enforceable in Malaysia are the Electronic Commerce Act 2006 ("ECA") which deals with electronic signatures and Digital Signature Act 1997 ("DSA") which deals with digital signatures.
TAIWAN
Li-Pu Lee, Formosan Brothers
Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?
Yes, Taiwan provides a list of certified e-signature service providers, of which only two are private entities. The full list is accessible here: https://gcis.nat.gov.tw/mainNew/subclassNAction.do?method=getFile&pk=690
Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.
In accordance with the Electronic Signatures Act, e-signatures are deemed to have the same effect as wet signatures on a contracts if (a) the counterparty agrees the use of e-signatures and (b) such e-signature is based on the technology of a certified e-signature service provider. However, since there are few certified e-signature service providers in Taiwan, e-signatures as defined in the Electronic Signatures Act are rarely used.
What is the legality of e-signatures in your jurisdiction? Are there key exceptions?
E-signatures satisfactory to the Electronic Signatures Act are legal and can substitute wet signatures on documents.
For e-signatures that are not affixed in ways aligned with the Electronic Signatures Act, these signatures cannot replace wet signatures. However, such type of e-signatures may serve as an evidence in support of a party's consent to a contract if the law does not require such contract to be executed in a written form.
What is the e-signature law enforceable in your jurisdiction?
Taiwan has promulgated the Electronic Signatures Act effective from 2001. This act authorizes Taiwan government to stipulate enforcement rules and guidelines on the technical requirements and procedures for an entity to become a certified e-signature service provider.
THAILAND
Jerrold Kippen, Duensing Kippen
Does your jurisdiction maintain a list of trusted entities to qualify e-signatures?
The Electronic Transactions Development Agency (the "ETDA") which is a government agency created by the ETA, and which is responsible for developing, promoting, and supporting electronic transactions, issues the criteria that must be met for a signature to qualify for certification under the ETA. And sub-agencies under the ETDA confirm such e-signatures For example the Thailand National Root Certification Authority (the "NRCA") can confirm whether or not an e-signature's certification has expire
Please provide a quick overview of the law, i.e., types of contracts that qualify for use with e-signature.
Generally, civil and commercial transactions made by the use of electronic data messages are governed by the ETA, with the except any transactions specifically excluded by Royal Decree. Thus far, the only transactions excluded from the ETA are those relating to family and succession matters.
What is the legality of e-signatures in your jurisdiction? Are there key exceptions?
Under the ETA, an electronic signature cannot be denied legal effect and enforceability solely on the ground that it is in the form of a data message. In the case where a person is to enter a signature in any writing, it is deemed that a data message in question is a legally binding "signature" if it:
- uses of a method that allows the intentions of the signatories to be identified; and
- uses a method that is "reliable".
What is the e-signature law enforceable in your jurisdiction?
In Thailand, electronic signatures are governed by the Electronic Transaction Act (2001) (the "ETA").
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
