The precautions being put in place globally to address the spread of Coronavirus include recommending or requiring many people to work from home. This has raised the question of how to execute documents in these circumstances and whether it is possible to legally execute documents by electronic signature. We provide an overview of methods (email execution, jpeg signatures and e-signature platforms) currently commonly considered, as a starting point for discussions regarding signing of documents when physical signing is not possible.

The appropriate method of execution will depend on the applicable fact pattern. Relevant factors include the governing law of the document, the type of document that is to be signed, the form of electronic signature used and any cross-border implications to be considered. We have set out below three different types of electronic execution – email execution, jpeg signatures and e-signature platforms. Those three types of signing method are currently commonly considered, but there are of course other electronic signing methods, such as using a pdf pen or signing on a tablet. This is a high-level overview and is not a substitute for bespoke legal advice and does not purport to be fully comprehensive. In particular, readers need to be aware that in certain cases use of an electronic signature may not always be possible.

  1. Email signing
    • execution document sent by email to party
    • signature page or whole document is printed, signed, scanned (or photographed) and returned by email in accordance with agreed signing instructions
  2. Jpeg signature
    • a pdf or jpeg of a signatory’s signature is saved, for example, onto a computer
    • the jpeg signature is applied as required to an electronic document
  3. E-signing platforms
    • these are cloud based systems
    • a signatory opens a link sent by email and clicks a tab or types their name to sign the document
    • when each signatory has “signed” the platform applies a computer generated signature of each party to the electronic document and creates a fully signed pdf version
    • a digital certificate is produced recording who signed the document, the time and date of signing and the IP address of each signatory’s computer
    • the executed pdf document is digitally sealed which will evidence any tampering with the document after signing

The above is only a starting point for discussions regarding signing of documents when physical signing is not possible. Before proceeding to execute any document, it would be good to consider whether the signing method is appropriate and sufficiently reliable for the documents concerned. In our experience e-signing platforms are generally more reliable than other methods as, depending on the form of e-signature subscription, they provide more sophisticated levels of e-signatures and identification of signatories, subsequent changes to documents are not possible without being visible and the audit trail in the form of a certificate generated upon execution makes it more difficult for a counterparty to prove that it did not sign a document. For a complete overview of how certain jurisdictions around the globe view three different types of execution – email execution, jpeg signatures and e-signature platforms, please see the annex. It is possible that certain jurisdictions will be added to this overview, please see our full briefing for the most up-to-date overview here.

For more briefings on the legal implications of coronavirus, see our coronavirus page listed under Insights on www.cliffordchance.com

About the author:

Tjerk de Jonge

Tjerk.dejonge@cliffordchance.com

+31 654367351

Tjerk de Jonge specialises in corporate law, corporate finance and related notarial law. He regularly advises on setting up (international tax) acquisition structures, mergers and acquisitions, joint ventures, private equity transactions, IPOs, corporate restructurings, as well as day-to-day counseling of public and private companies on a wide range of matters.