Electronic Signature

Legality of an Electronic Signature in Cross-border Operations

Any commercial process between two countries should include cross-border authentication and mutual recognition of electronic signatures and documents. The article deals with the legal aspect of the use of electronic signatures.

Online operations are getting increasingly common in developed and developing countries. People often purchase goods or sign contracts in a digital environment or exchange documents related to commercial transactions. 
Taking part in the transactions between the countries raises the question of the cross-border legality of electronic signatures in commercial processes and contract agreements in a digital environment.
In this article, we will try to eliminate the most common doubts about this issue.

Digitization of document workflow in commercial operations
Document exchange in commercial transactions takes place either in public administrations to exchange tax and customs information or in the private sector for business transactions. People often share information, such as personal data, bank information, contracts, invoices, delivery notes, or statements, among other documents. Increasingly, their document flow is carried out in a digitally automated format, optimizing the entire process.

Of course, when considering the exchange of documents in digital formats, such as offers, contracts, invoices, or any other documents related to commercial transactions, the use of electronic signatures should inevitably be considered. In most cases, they require authenticity, traceability, integrity, and an expression of willingness to accept or approve the content of the documentation.

However, what happens when these commercial transactions are carried out between people or companies located in two or more countries?

There are various legal aspects or specific features of electronic services. Does the electronically signed documentation have legal force in a country other than the country where the signatory companies or individuals are located? Will it be legal? In all the countries? Who can provide us with these services? These are just some of the challenges that arise when digitizing processes or digitally managing our business and contractual relationships beyond our borders.
Is an electronic signature legal in all countries?
Agreements are generally governed by the principles of autonomy of the will of the parties and contractual freedom of choice, which recognize the right of the parties to independently regulate the contractual terms, including how consent is given or presented.

The above means that, regardless of whether the parties are located in the same country or two different countries, their willingness to accept the use of an electronic signature is sufficient to create legal consequences in the contract or any other related document.

Thus, if internationally recognized commercial practice in the sector or industry in which the contracting parties operate accepts the use of an electronic signature as a valid contractual document and the parties do not declare otherwise, no additional recognition is required.

One has to check that it is allowed to sign documents digitally in all the countries involved to ensure that the electronic signature is legal. And it should be recognized as a valid means of proof to represent will or acceptance. This point can usually be easily verified by checking whether there is an electronic signature regulation in these countries.

In the European Union States, the eIDAS Regulation uniformly regulates the European Digital Single Market. It also regards the implementation of trustworthy electronic services such as electronic signatures. So, the use of electronic signatures is fully recognized in any other member state within the EU.

In this sense, people and companies established in the Member States of the European Union can use electronic signature solutions without restrictions to conclude contracts and exchange documentation in digital format for commercial transactions and of any kind, unless a legal prohibition applies.

Thus, a citizen or company located in a country such as Spain can use an electronic signature to sign a contract with a person located in Belgium, Germany, Portugal, or any other member State of the European Union. It will have full legal consequences;  these signatures are legal evidence following the general regulatory framework. 

Qualified Trust Service Providers: Providers of signature solutions in international transactions

The legal value of electronic signatures is determined not by the geographical location but by the elements associated with the signature itself. 
Among the main features that we need to consider when evaluating is a unique connection with the signer, established through a secure issuing process.  It should be linked to the data so that any subsequent change in the data can be detectable.

The article includes data previously presented in here.