By Patrick Gearon, William Reichert, Jonathan Fisher & Sarah Alaiwat
Charles Russell Speechlys LLP
As the disruption caused by Covid-19 continues to affect day-to-day businesses and transactions, the shift towards the use of digital documents has never been more timely or relevant, particularly in the GCC where remote working, travel bans and office-space closures have been in place for some time.
“Electronic Records” are referred to throughout each jurisdiction’s relevant legislation, with interpretations that differ slightly, but such records can be summarised as those records that are capable of being created, stored or transmitted via electronic means. Generally, in order to be regarded as an ‘Electronic Record’, such record shall:
- Preserve the information contained within it;
- Be capable of being printed;
- Retain information regarding its author, sender details, recipient details, and date and time of transmission; and
Be retained in either its original format or in a similar format that allows the information to be displayed as originally displayed.
The term “Electronic Signature” can include an electronic sound, symbol or process, which needs to be an act of the person required to sign such record and either attached or associated with an Electronic Record. There are various forms that Electronic Signatures can take, including:
- Scanned PDF versions of original, wet-ink signed, hard-copy documents;
- Scanned PDF versions of original, hard-copy documents with signatures scanned or electronically generated signatures inserted;
- Either scanned PDF versions or electronic versions of the document are signed using a touch screen;
- Applying a secure signature to a document via the use of software, which encrypts the document and is then authenticated by a third party;
- Applying a secure signature to the document, which is then authenticated using an encrypted key embedded within the document;
- Selecting a ‘tick-box’ or clicking “Accept” on a web-page or in an email; and
- Emailing the words “I accept” to the other party.
It is important to remember that it is not just a question of whether or not electronic records and signatures are permitted in a jurisdiction; if permitted is it important for a party to also consider the following:
- The rules of different jurisdictions are not always the same, with certain jurisdictions allowing the electronic executions of certain document with other jurisdictions prohibiting such execution of such documents. This is important to consider in terms of both the locations of the parties but also the governing law of the document;
- The terms of the document itself may prohibit the use of electronic signatures and so the terms should be reviewed and negotiated accordingly prior to execution;
- The articles of association of each party (or shareholders’ agreement, if one exists) connected with the transaction should be reviewed to ensure that they allow execution of documents on behalf of that party by way of electronic signatures;
- The controls and systems in place for each party connected with the transaction should be sufficient and secure enough to permit secure execution of a document by way of electronic signature and for the electronic storage and back-up of such document;
- Have the parties to a transaction agreed to utilise electronic signatures and have records of such agreement been maintained;
- Are there any additional execution requirements that need to be catered for, such as the requirement for a witness to attest the execution; and
- Care should be taken at the outset to ascertain if a document will require execution in the presence of a notary, as such methods of execution do not allow electronic signatures.
The Electronic Signature regulations in place across the GCC are summarised on the following pages:
As the implementing regulations have not yet been issued some reference must be given to the previous legislation from 2002, the provisions of which do not apply to:
- Documents requiring execution before a notary;
- Property title deeds;
- All matters within the jurisdiction of the Sharia’ Courts;
- All personal affairs of non-Muslims;
- Negotiable bonds
Not permitted for:
- Documents requiring execution before a notary;
- Property title deeds;
- Documents relating to marriage, divorce or wills;
- Particular property sale and purchase & rental documents;
- Negotiable instruments
Not permitted for:
- Particular property sale and purchase & rental documents;
- Powers of attorney;
- Trusts and wills;
- Affidavits or affirmations to be used as evidence in court proceedings
Not permitted for:
- Documents requiring execution before a notary;
- Documents that require wet-ink, hard copy signature
Not permitted for:
- Documents requiring execution before a notary;
- Documents relating to family and personal status;
- Documents creating interests in land;
- Negotiable commercial instruments in accordance with the provisions of the Commercial Law of Qatar
Not permitted for:
- Documents requiring execution before a notary;
- Powers of attorney;
- Property title deeds and transfer
Not permitted for:
- Documents requiring execution before a notary;
- Documents relating to marriage, divorce or wills;
- Property title deeds;
- Promissory notes
Not permitted for:
- Documents requiring execution before a notary;
- Documents related to transactions related to Civil Status Law – i.e. marriages, divorces, inheritance etc.;
- Issuing court proceedings, warrants, verdicts
When it comes to executing documents electronically, it is essential that the method of execution will be regarded as valid, should such method ever be questioned. This should be discussed and agreed between the parties and professional advice sought as to the correct method of execution in the relevant jurisdictions.
For questions or more information, please contact: william.reichert@crsblaw.com