Unlocking the Power of eSignature Legality for Customer Support in Australia

How to eSign a document: e-signature legality for Customer Support in Australia

good morning everyone and a big welcome to all who were able to join us live this morning or this afternoon if you've joined us from Asia to talk about East signatures today and how to get it right today I'll be joined by two of my fellow field Fisher colleagues to discuss the e signing and before I introduce them this session will run for about 30 minutes with time for questions at the end you'll find that there's a Q&A or question box on your screens and do feel free to submit your questions as as we go and we'll take them all at the end the other thing to say is that we'll be recording the session and we'll make sure to share a recording with each of you afterwards so that you can share it with your colleagues so today I'm joined by Richard Gibbard and James Lewis now Richard is a professional support lawyer in our finance team and off counsel so he tends to be the person that we all go to with those annoying technical questions and we're seeing those questions coming in thick and fast on eSignatures right now which is why we decided to do this session James Lewis is a partner in our dispute resolution team and his clients tend to be banks corporates or high net worths and he deals with anything from contractual issues to shareholder disputes and generally as a troublemaker so we go to him when things go wrong and he's also seeing a lot of t dispute related questions on eSignatures so with that we're going to turn off our cameras during the presentation but we'll turn them back on at the end for the questions and with that over to you chaps thanks very much thanks so much Tim and so before we jump in substantive Lee I'll just say a few words about what it is that we're likely to cover and I should imagine that most of you listening in today will be here because of the increased chatter around electronic signatures and the logistical problems we face in obtaining and exchanging traditional wedding signatures on documents both in the UK and internationally a lot of that chatter has focused on the legal effect of electronic signatures but we've seen and heard less on the practicalities and the pain points that electronic signatures themselves bring with that in mind this webinar will look at the execution of documents in a transactional context and provide a deeper insight into how the signed contract electronically the problems to avoid and some pips are overcoming a few of those practical difficulties this webinar comes somewhat hot on the heels of the Law Society of England and Wales having updated its 2016 guidance on the use of virtual execution and heat signatures in response to the coffered 19 pandemic and we've incorporated some of that guidance in our content today at the end of the presentation part we should have time for questions and answer session as Tim mention should you have any specific queries that we haven't covered so to start off with and because we're lawyers and we can't quite get away from the law altogether I'll just say a few words on what we mean by electronic signature how that might differ from virtual signatures and what the legal effect of those might be across different jurisdictions and also because lawyers love exceptions this webinar will not cover the execution of wills which are subject to more specific requirements so let's start by looking at what the difference is between virtual signing and East signatures virtual signing means signing a hard copy paper document in wet ink and then circulating a scanned version of that document or just a signature pages in an electronic form by email I'm of a generation of transactional lawyers that remembers the late night gatherings around vast boardroom tables with piles of documents design but the real reality is that for some time in the UK the majority of transaction has completed on the basis of the Law Society's 2010 practice note and the so called mercury protocol which I'll talk more about later many other jurisdictions around the world also to accept the signing and exchange of documents on a virtual original or sort of PDF now it's worth saying that this virtual form of signing and closing is still very much effective and feasible but it does require parties to have access to printers and scanners and the capacity to generate and disseminate often large and complex documents if you think about the full suite of documents in a construction or project financing context for example it's unlikely that many homes will have that kind of printing and scanning functionality electronic signing comes in effectively as a subset of virtual signing before we talk about the extent to which exec tronic signatures are legally valid I'll just expand on what we mean by them in simple terms electronic signatures are where we use technology to dispense with the need from wet ink as a form of execution in the EU and the UK electronic signature has been defined for the best part of a decade by reference to the 2016 EW is regulation which superseded earlier UK legislation under that regulation an eSignature is where data in electronic form is attached or associated with a document in electronic form and that data is used by the signatory to sign it's a common misconception perhaps that each signature is limited to e signing platforms such as or a Dobby sign in reality an electronic signature may take many different forms these include a signatory typing their name or initials at the bottom of an electronic document such as an email or in the signature block of a Word document a scanned handwritten signature that is incorporated into an electronic document or pasting an image of a manuscript signature this is a JPEG into an electronic document clicking a confirmation button on a website using an instrument or a finger to apply a mark on an electronic document via a touchscreen or a digital pad or obviously using a web-based a signing platform like Adobe sign to generate an electronic representation of a handwritten signature or a digital signature using this sort of crypto cryptography backed by a digital certificate from that platform verifying the signatories identity now in understanding the various forms of the eSignature may take it's important to consider how trustworthy secure and reliable the technology used to create it is for example just typing a name into a Word document is very easy to forge also anyone who has access to an image file of a manuscript signature might just paste it into a document so it becomes important to distinguish between the legal validity of an electronic signature and its evidential weight so that is while an electronic signature may satisfy a strict legal requirement for a document to be signed and it's admissible in evidence in legal proceedings the parties also need to consider the extent to which that signature might still be called into question if there's a subsequent dispute concerning the authenticity or integrity of the document having an enhanced quality of electronic significant signature can demonstrate so the integrity of the document effectively denying it has been tampered with or changed the authenticity of that document ensuring the document comes from a particular person or source and non-repudiation so that a signatory is prevented from denying that they signed the electronic document digital signatures which are more technologically advanced and secure and to address some of these evidential issues under the Eid AS regulation there are three tiers of electronic signature a simple ecig nature the advanced electronic signature and the top tier qualified electronic signature a qualified electronic signature which requires enhanced identity proof and a certificate issued by a qualified service provider affords the highest level of admissibility in EU courts and has the equivalent legal effect of a handwritten signature also a qualified electronic signature that is based on a certificate issued in one EU Member State will benefit from mutual recognition across the whole EU specifically in the UK up to this point qualified electronic signatures are largely unused because they really work better and the more readily understood in EU countries where there's a national ID scheme in England and Wales the distinction between different tiers of electronic signature is somewhat redundant as all types of signature are valid the question as I say is more one of the evidential standing of that signature in Scotland there's a clearer use case for qualified electronic signatures and advanced electronic signatures particularly in property transaction key signing platforms will generally provide the option to side by way of digital signature with different degrees of encryption and authentication technology in order to meet those EU standards so if the burning question for you has been our electronic signatures valid the answer is yes and the laws not changed since the outbreak of the pandemic all their legally valid and admissible in the UK in the EU as well as most of the major jurisdictions around the world that deal with commercial contracts the key thing for an electronic signature to be valid in England and Wales is that the signatory enters or applies their each signature with the intention to authenticate the documents if the signatories does that then the law says the eve signature has the same legal effect as where I think but you'll still need to meet any other signing formalities for example witnessing so where there are exceptions that are validity of signatures these typically come down to certain document types that require these additional formalities some of which will touch on shortly there's no additional need to sign a wet ink or hard copy version unless that document needs to be registered in that way which again I'll come to or where it needs to be notarized or Apple sealed in other jurisdictions at a cross-border level and looking first to the EU the Rome 1 Convention tells us that it's a question of the contracts governing law as to whether a party has valid beside so if a French company has signed an English law contract this is a matter of English law as to whether that each signature is valid and the signature will be valid provided the French company is permitted to execute documents in that way as a matter of French law in terms of their capacity and authority to do so in Europe and as I've already alluded to there is an increased focus on the type of electronic signature that is applied so if your governing law is French German or Spanish for example you'll need to be more aware of what it is that needs to be signed and a particular requirement under that local law so just to showcase a few other key jurisdictions outside of the EU under New York law in the u.s. virtual signings assigning platforms and JPEG signatures are all ok but there are some exceptions for certain documents the storage broadly the same for major economies in the Commonwealth countries such as Canada and Australia in Japan virtual signing signing platforms and electronic signatures are all thought to be valid although they are relatively untested in China virtual closings and assigning platforms are generally ok but JPEGs might be a problem and there are certain documents and transactions that still need wet ink versions again in all instances it's likely courts around the world will assign different degrees of evidential weight different types of electronic signature and this will depend on the facts and process by which the signature is generated and applied to the document so returning to more familiar shores I'll just talk briefly about some of those additional document formalities that might come into play the first hurdle you might come across is where there is a legal requirement for document to be in writing and signed by a relevant person happily electronic signatures will work in England and Wales the documents in this category such as guarantees or a legal assignment the nuance in e-signing really comes in when we start to think about particular document types indeed one of the reasons why each signatures haven't been adopted wholesale innings in the world is because they were a reticence around electronic signing deeds in particular under English law a deed is a document that is executed with a high degree of formality there are particular circumstances where deeds are required by statute or common law such as register of all transfers of land mortgages appointments and trustees powers of attorney and agreements where there's not sufficient consideration it's also partly the reason why we have exceeded wills in this webinar 20:19 report the law Commission of England and Wales concluded that an electronic signature is capable in law of being used to validly execute a deed which itself may be electronic provided the person signing the deed intends to authenticate it and any applicable formalities relating to the execution of that deed are satisfied those same formalities must be observed irrespective of whether a deed is executed with an electronic signature or wet ink signature there for most practical purposes the formalities we're talking about here are witnessing now although authority is nuanced depending on the circumstances the law Commission in their review take the view that a witness has to be physically present to observe the signature separately the Law Society in their most recently updated guidance has stated that it remains best practice for the witness to be physically present when the signatory signed rather than witnessing through a remote video link however they do accept that with public health restrictions in place it will not be possible to follow best practice and it may be necessary to modify practice to suit the current circumstances now HN land registries view is it would be unsafe to accept any form of witnessing other than contemporaneous physical witnessing as being sufficient effectively for the purposes of section 1 3 of the law of property miscellaneous provisions act so where does that leave us well firstly a virtual signing and an electronic signature can validly be witnessed by someone who is physically present the law doesn't prohibit witnessing of electronic execution and the witness can also electronically sign their attestation and need not actually signed it contemporaneously while they're in the presence of the signatory be signing platforms have built-in systems that purportedly ensure the witness is physically located for example but they're not infallible and it's not always possible to verify that the witness is physically present and observed the signature he platform functions might rely on a party opening a document on the same physical device for example or on the same network using IP addresses and the like but these technical solutions still have the potential to be masked or manipulated in some way there are also other problems for larger transactions in terms of separating out those documents that need to be witnessed and those that don't and so on these methods are all still require a physical presence of course but returning to that requirement there are there any practical solutions for witnessing when social distancing prevents close proximity well there are a few so first consider who can be a witness the only legal stipulation is that someone who is a party to a deed or who receives the benefit of it should not witness but can a spousal relatives even a competent minor sign but because healing may be required to give it evidence as to proper execution by the signatory it remains advisable that an independent witness be used secondly can you somehow arrange for a witness to take place with suitable precautions for example placing documents 2 metres away on a driveway or doorstep taking turns to sign using masks gloves and separate pens thirdly can you dispense with the need for a deed altogether or sign in a way that doesn't require a witness and finally can we stretch the case law to accommodate a video link with a clear line-of-sight and ancillary evidence effectively you'd be running a test case in these circumstances but some may take the view that the pandemic has changed the landscape enough that a public policy exception might be made as a brief aside recently in Australia the state of New South Wales pushed through a law expressly permitting video witnessing however no such legislative fix has been proposed to the UK another aspect to consider is the need to register or file certain documents they need to register documents in some instances has also had an effect on the speed at which electronic signatures have been adopted that is certain registries have insisted on wetting signatures before they will read the documents some of those requirements have relaxed in recent years months for example Companies House will now accept a certified copy of a charging document executed using an electronic signature in satisfaction at the registration requirements under the Companies Act but that's if it's using the online web filing service if you're still filing in paper forms you'll still need at least certify the document in a wedding form also Companies House has indicated that it will not accept a simple typed signature in a document which is actually slightly at odds with what the Law Society guidance says that font or typescript forms for example will be accepted unfortunately therefore there's still some confusion as to the extent to which an east-side document or form will be accepted by Companies House in every instance and the advice is really if in doubt seek confirmation that your proposed form of signature is going to be acceptable for filing HM Land Registry and the land charges registry require a wedding signature on a paper version of any document that's submitted to them for registration however the Land Registry have recently indicated the we'll accept deeds that have been signed using the mercury virtual signing approach which again I'll expand upon in a moment we're stamp duty is payable on a document HM Revenue & Customs would normally expect to stamp a version of the document with a wedding signature during the pandemic however HMRC has relaxed some of its requirements to allow PDF signatures now wild lawyers may be seen in some circles as static if not obstructive is worth highlighting that law firms across the country have come together to discuss and coordinate responses to some of these registration and filing conundrums and we've been encouraged by the collective efforts of the industry in that regard so how does an electronic signature work if we're saying that the law hasn't changed why are we focusing more on it well plainly the current pandemic social distancing rules and the lockdown have put a spotlight on the ability to conduct non face-to-face transaction of closings as traditional processes are unable to continue and given we're not returning to physical closings anytime soon we must all consider virtual execution including the use of a signature x' as the new normal for completing transactions in a timely manner and that means we have to understand the practicalities as much as the law so what does the virtual closing or assigning look like we've already alluded to emerge to mercury a couple of times mercury closings are those that follow best practice protocols derived from a 2008 case known as unsurprisingly the crown and mercury Tax Group against HS HMRC there are actually three options for virtual closings but in the interest of time I'll mention option one as that covers the full range of agreements under English law including deeds under option 1 a signature page will need to be signed and witnessed it in pen and then captured with a scanner or camera to produce a PDF jpg or other suitable copy of the science signature page a law firm typically sends out the relevant documents for signing to parties with clear instructions based on that protocol each party then signs and sends a single email to their solicitor attaching the final agreed copy of the document and a copy of the signed signature page the idea is to reduce problems with post paper and scanning as will enable parties to email deeds and other documents to their client or customer who then only need print and sign witness if needs be the signature page and take a photo or scan of that before returning it for completion what about using electronic signatures well as with all things the key is preparation if electronic signing is proposed the parties and their advisors should agree the relevant method and platform if any to understand the detail of the signing process as early as possible ahead of completion it's advisable for a coordinating law firm to agree and circulate signing and release instructions that follow mercury protocols wherever relevant if using assigning platforms be aware that they're not failsafe they need to be set up properly and with good transaction management discipline to get things right you can still make legal mistakes with assigning platforms from automatically adding date stamps to signatures to signing in the wrong order or circulating the wrong documents to the wrong parties ihsani platforms have various account options it may be the case that the coordinating law firm has an e signing account or it may be the case that the client holds the account the choice will often come down to policy check there are no restrictions on e signing for example in assigning companies articles or other constitutional documents as well as any internal policies for any party using a signing such as risk management they might still need wetting forms all require a signatures to be channeled through a suitable encryption and identification technology in a financed context for example you may also need to give thought to specimen electronic signatures and how these are held or reproduced for future transactions given the technical limitations of reproducing exact copies of handwritten signatures in an electronic form PDF scans of wet ink signatures may not marry up with the electronic signing process so if your transaction is across board of transaction local lawyers will still need to be consulted in each jurisdiction as to any restrictions so assuming all that's teed up how there's an e signing platform actually work well typically a coordinating law firm at your reputable law firm of choice organizes for the execution versions of documents to be uploaded to the platform together with instructions as to how to access the document using email addresses documents maybe packaged up and disseminated in a virtual envelope there could be limitations as to document sizes we've heard issues for example with vast building contracts with their multiple schedules of plans drawings requiring them to be chopped up into smaller packets also there are concerns in some instances that documents need to be witnessed assuming you're comfortable with a witnessing are sent out to the witness alongside documents that they are not required to witness so there can be confidentiality and privacy concerns here it's crucial to understand who has what access and permissions in relation to the documents you're packaging but assuming you can set up the envelopes to work for your transaction the next stage is ensuring the person you send them out to is the right one the main advantage of a nice tiling platform is security particularly as to identifying and verifying signatories platforms are mostly cloud-based and encrypted so typically the coordinating lawyer arranges for a secure passcode to be generated by the platform to be pushed to the signatory which gives them unique access to the documents uploaded the platform will use metadata generated by these processes as an evidential breadcrumb trail should it be required and a certificate of completion is generated for each transaction which sets out the document history on the platform recipients access when the signatures were added and we're using location identifiers such as IP addresses the coordinating party can set the order in which the documents are signed and dating also needs to be strictly controlled it's important that signatures and not automatically date or time stamped where there are specific legal reasons why that document is not dated released or delivered until an agreed time we recommend that if there's an option to time or date stamped documents that function is deactivated and dating is left to the coordinating party finally once all these signatures are applied the coordinating party is notified and the parties agree that the dated original document and certificate of completion is then retained by the law firms acting on the transaction together with all the other transaction documents the history of the signing process is typically recorded a viewable should it be required and as I say this audit trail may also be helpful for regulatory compliance purposes particularly in regard to data protection accountability and data retention obligations under GDP are what about electronic signatures not using an e signing platform or keeping your electronic execution within the bounds of an e signing platform has the benefit of consistency and the encryption security they offer however as we've heard electronic signatures can be applied in many ways that are also legally valid and not limited to those offered by the likes of or Adobe sign again we're in the realms of evidence integrity and authenticity so a document signed by pasting a JPEG image of a signature in a doc into a document and returning it via email is plainly more susceptible to fraud or perhaps more benign the mistake so execution in this way should also take place following an agreed process again a reputable law firm should take charge of coordinating the signing and additional checks can be put in place to require written confirmations from the signatory that they inserted their signature into the relevant document and it tend to be bound by it and they're supporting Authority by way of board resolutions for example that the signatory was authorized to sign in that manner and acknowledge their intention to be bound given the multiple avenues for getting documents signed it's perhaps reasonable to ask if it's possible to have a mix of signing formats that is a signatures virtual signatures and wet ink well English law typically accommodating allows that allows that but certainly again from an evidential perspective not least a logistical one it's advisable to consolidate signing methods as far as possible indeed there's also a view that where a certificate is issued by an e signing platform if it only pertains to one counterparty while others have signed off platform the certificate rather loses its evidential value additionally it may not work for cross-border transactions or where a registry requires it because all the signatures need to be in one document so to the extent we haven't already mentioned them what are the other potential issues that can still arise with a signing it's fair to say that technology does provide us with solutions to the logistical problems of hard copies and posting wedding signatures but what if you don't have a suitable printer or scanner in the absence of a printer electron soft documents can be assigned in various ways either by clicking inserting a pre-loaded manuscript image using a stylus or simply typing in a font an email can also constitute an electronic signature however where this is done to an SRE platform there are obviously more safeguards as to the authenticity integrity as we talked about another tip if you don't have a scanner is that a photo image is no less effective there are some common-sense practical tips here though ensuring a document is well-lit that you can capture the whole of the document and the signature including any footers so page numbers and document reference numbers and the like when circulating those images you should also follow in mercury instructions in the same way as if you were using a scanner it's also worth making the point that some institutions don't actually like their documents being stored or circulated on personal devices like mobile phones so care has to be taken in some regard there interestingly when we look at electronic signatures in terms of evidence in the good old days of wedding signatures we made or make a lot of assumptions around authenticity and integrity of execution in the world of a signatures were actually provided with additional levels of metadata and evidence to unpick and a process that's supposed to assist that she ends up in effect creating more problems we should always be alive to those methods that allow the least capacity for mischief and build processes and protocols that mitigate the chances of things going wrong we can get comfortable do a range of e signature or virtual signing methods are effective at law but there'll be different degrees of resilience to fraud and for this reason certain methods may be more problematic on a cross-border level so what else should you be mindful well aside from verifying identity which again I'll talk about in a moment you should check the authority in capacity of the individual signing there should be clear evidence that the parties have the capacity and authority to each sign and that they're all so happy for counterparties to do so whether that be by getting cited board resolutions and approvals or right by relying on due diligence as to the absence of any relevant restrictions in the entity's constitutional documents be aware of the relevant logistics and the need or otherwise to follow a particular method is there a particular reason why a person might be issuing a more secure digital signature and actually want to proceed on a pasted in jpg or a simple type script signature are there ways in which you can bolster the factual matrix around the transaction perhaps by observing exist the eSignature separately over a video link getting a separate email confirmation from the signatory that they did in fact assign a relevant document and we're witnessing is required a confirmatory email that they were physically present and observed this the signatory assigning a relevant document and have subsequently inserted their own signature into the document so turning now to security be aware the assigning platforms as well as transaction management platforms where documents might be uploaded as part of a closing they're frequently cloud-based now for the most part organizations now are comfortable with cloud-based solutions but you should still check this is not a problem picking up on specific concerns as to ensuring the identity of signatories and the recipients of any documents that are to be signed there are a range of views as to the effectiveness of various authentication methods such as two-factor or even three-factor authentication there are different ways to achieve this and much will depend on the platforms and the participating parties approach but for the most part they will require the recipient to use additional passcode keys to access the documents rather than simply receive them by email this information will typically be sent to a mobile device and recipients would be asked to confirm the relevant details to the lawyers coordinating the signing in that sense these arrangements are still not infallible as they necessarily rely on the parties providing accurate and truthful information the flipside is that as I've said this additional data provides inadmissible audit trail should something go wrong what about the status of an electronic original document and requirements for certified copies well since the mercury case English law recognizes the concept of a virtual original document that is an electronic version it does not need to be in hardcopy or wedding to be an original document indeed you can have multiple versions or counterparts some of which are wet ink and some of which are electronic is in our view to certify an electronic document is an original however it will depend on the history of that document and how comfortable the certifying party is as to its origins another point to make is to check the policy of any assigning platform as to how long the documents remain stored on that platform and can be accessed or investigated after completion should the veracity of that signing process be called into doubt another question we're asked is if we need to amend the document to allow it to be electronically signed now generally there's no need to include Express provisions referring to or consenting to e stigmatise but there are some circumstances where it will be necessary such as older documents that may express the excluded electronic forms or in jurisdictions where it may be helpful from an evidential and certainty perspective on advice from local counsel we do advise that signing instructions and completion arrangements expressly contemplates virtual signings and that these can be widened to contemplate specific East signature forms including assigning platforms and we're aware there's some organizations that operate their own accounts on signing platforms include specific wording that requires customers to consent the use of electronic signatures before they're able to sign using the platform and finally legal opinions legal opinions from most reputable law firms won't typically require amendments for virtual signing but some firms will amend these on a case-by-case basis to include certain factual assumptions around these signatures often this will be as to matters of identity and so forth which are typically matters of fact and not something that lawyers are expected to apply on that being said a legal opinion will ordinarily talk to the capacity and authority of the signature so the recipient can get some comfort in that regard okay so that was all I had to say and I think we're going to move now to a question and answer session and which I think Tim you might want to take forward absolutely we can switch our cameras back on this moment but Richard thank you very much indeed that was that was really helpful and actually quite a lot of information in there to be to be gone through so I think quite a few people will want to listen to this again afterwards but we got some questions coming through which is fantastic let's take the first one from from Miriam John in Singapore rich and James will a link be sent to participants of the recording this webinar the answer is Miriam yes it will be we will make sure that we'll send a link to all of those who have attended and we'll give you the chance to follow up with specific questions offline next one would it be possible to circulate yes indeed yeah same question so other than those two whilst we're talking do you feel free to send through further written questions using the the question chat section but I've got a couple of my own it seems to me that the main thing here is one of organisation and those of the lawyers in the room are obviously familiar with virtual signings we've been doing those for years but normally we we just follow a closing agenda which has a list of the documents and a list of the signatories I think having listened to you Richard is it worth doing a dress rehearsal even or going through and being specific about not just who's gonna be signing but how they're gonna be signed and and going so far as to say you know who's who's who's going to be witnessing and in what capacity and where are they something that I've never contemplated doing in the past I've always let clients find their own witnesses I think that's I think that's a great idea I think generally there are as we said you know that on a simple level yes an electronic signature is valid but there are lots of ways where you can sort of trip up and I think there are mistakes that can be made and actually there's some of these and electronic signing platforms as much as they'd like to be and aren't all sort of a bit counterintuitive and and some of those sort of methods in terms of setting up can be quite technical so certainly doing you know setting it all out in a in a very sort of granular level would be quite useful and I'm not sure how how much appetite there would be for doing a dress rehearsal for these things I mean you know maybe some of these transaction competing at a slightly slower pace in in lockdown but but certainly if there is if there's a scope to some sort of work through some of these issues beforehand and that would be you know very much advisable thank you and we we tend to find that I quite often get asked I'm in a hotel there's something as a director in a hotel somewhere remote and you know can they can they use a security guard or someone from witness I think if people are all doing this from home it's going to be a bit more challenging is it okay for spouses children parents to witness your signature and yeah I mean yes as I said in the presentation the the only legal stipulation really is that the person doesn't isn't a party to the deed or doesn't have the benefit when interest in that deed and so yes you know you can effectively have a spouse or and even even a child provided that there again they are sort of a competent in that sense so I mean it does get a little bit woolly around there but but there are there are options but you do just have to be mindful of if this signing is going to be called into question effectively you are then going to have to get that witness into court to to confirm so that's the sort of thing that you need to be mindful of but yes there are there is no sort of general prohibition on a spouse or a close family member witnessing but you know trying best practices in mind thank you Richard if I could just add in there Tim I think you just got to remember what the role of the witness is the role is to witness that a signature has been applied and then also to attest to it by by adding your the witness adding its own signature but in terms of actually witnessing a signature I think people do too sometimes forget that the category of people who can act as witnesses is actually rather wider than a lot of people think there are some clear exceptions for example if you have you cannot have your signature witnessed by another party to the same deed there's also other particular documents for example wills where there are more stringent requirements for example there needs to be two witnesses to a signature but subject subject to that the question really comes down to what will be the strongest evidential support to the signature and that's why best practice has always been to have a rather more independent witness ie someone outside of the close family and somebody perhaps with more of a of a sort of recognized standing whether it be professional or otherwise just so that if there is to be any question in the future the evidential burden can be relatively easily dealt with by contacting that person hopefully someone a relatively good character and the question of bias doesn't come into play because that person is pretty removed from the signer but I think in these in these times it is worth remembering that if a document is to be signed by you and your wife or other close relative who's currently locked down in the house with you has no interest in the document no personal interest they are a perfectly good witness thank you James does excellent well this this takes me on to my next and favorite question which I'm very pleased to see that Paul has asked when it comes to witnessing deeds did you say a witness can witness by video or FaceTime linked and physically witness when in possession of the document as a as a dispute lawyer it is my bread and butter is these kind of rather gnarly cases that throw up situations which you you probably wouldn't have created even in fiction sometimes but but they do come up and that's why and that's how the case Thor is created because the situation comes up there hasn't really been dealt with before I think where we are on this is that the best practice remains that physical presence of a witness is is the best practice the reason for that is that the law is struggling a little bit to deal with how to deal with virtual witnessing virtual signing in general it all stems really from first principles which is the requirement for deeds to be witnessed comes from a 1989 act there's no actual specific reference to it to the presence of the witness being a physical presence which has led people to think well can it be stretched to a virtual presence however the Law Commission in its latest report has come down on the side of the fact that witnessing should be physical and any other and any video or virtual witnessing may not fulfill that requirement so they are sitting a little bit on the fence there but they're kind of playing the conservative role on this now this hasn't also been helped by some case law the case law going back many years actually has generally come down on the side of physical presence is what's important and and that goes back to the idea that the basic idea was a witness would would do their job as a witness by being physically present to a signature and at the same time the second part of the witness's job attesting to that signature by actually putting their own signature in there afterwards to say yep I confirm that this happened the old case has talked about things like documents being signed and then attested at a different time some even years later people were trying to claim that the attestation which still be valid those have generally been rejected however in recent years there has been more cases looking at whether virtual witnessing could be accepted and with the speed in which things are changing due to circumstances I think there will be more cases coming out on this I mean that the most recent case I'm aware of involves actually two parties based in Hong Kong signing a document the required witnessing one of those parties was in Hong Kong it was witnessed by video linked by their solicitor in London the court and the court has did actually find that that was a valid attestation now there has been some criticism of that case because it's not in line with some of the you know that the statutory requirements and as interpreted by the Law Commission but what it highlights is that this is an evolving area and it may well be the case that the the the requirements and demands of the current continuing situation may see a shift in the law to more acceptance of virtual signing but I think what needs to be made clear is that there needs to be some kind of support to try and verify the virtual signing so we talked about politicals we talked about dress rehearsals we've talked about the idea of working out in advance who is going to be doing the signing and who is going to be witnessing if that is all laid out that that also provides quite valuable evidence to suggest that a certain person was going to be witnessed by another person and if that happens in the document then it all seems to add up yeah so I think taking mercury the extra the extra mile I think I think it is I dare it should you view you have anything other to add on that yeah I think I mean I think you know like I say you should have talks about these cases and there being other cases you know going back to people were sort of witnessing documents do courage windows and line-of-sight and all this kind of thing my phone again who's that's it yeah yeah but you have to remember some of these cases worse and have done in a lot of it was in the context of wills as particularly mischief they're around you know sort of life planning and things like that there's no public policy reason there's why Wills and things need this kind of veracity so people are talking about well is there a public policy argument that now we have the the pandemic and we also have a much more advanced systems of technology that really you can start to sort of for certainly on the commercial contracts level work around that and I think you know it was encouraging in that sense that the in when the law was changed in New South Wales recently that you know they did recognize that actually this is a sort of concept that needs to be to be addressed and they did it quickly by you know forget you know not waiting for a test case just putting putting a sort of statutory amendment in so yeah if you would do it going down it remote witnessing route there's no doubt you would be something of a test case but there is it there are sort of you know this and thought there I think the other point is to mention on that is that actually getting to the point where you need a remote witness should be relatively you know scarce because there are as we sort of talks about there are other options you know that there aren't too many circumstances where you can't get your spouse to witness or you can't get your your neighbor to witness by keeping from two meter distances and you know we've seen is gonna say it should actually be easier in a sense now because people are more likely to be signing from home let's just rattle through a few other questions because there's quite a few that have come through which is fantastic you mentioned two meters there are no obviously social distancing needs to be observed even when witnessing we've been asked by a meaner mentioning witnessing two meters apart can this be done by way of counterpart ie the signatory signs one copy of the document from his front door and the witness watches is at a safe distance and then signs on her copy I think James would probably and know the case law on this more but I think the understanding is that the witness should be testing on the same documents but I think you know there we've sort of seen practical solutions to that in terms of someone signing a document walking out leaving it on their car bonnet and then someone coming over and collecting it again you know keeping surfaces separate you know with gloves and documents being sealed and things like that there are there are sort of practical ways of doing it that you you know you don't necessarily need to run the gauntlet of doing things in a sort of contrary way it's going to be challenging to merge together a counterpart with us with a witness and a counterpart with the signature I I agree we prefer to see it on the same document if at all possible Richard you mentioned New York with generally okay with ecig matures is there a different policy across all US states that's a tricky one from Pierre yeah we haven't let me your lawyers on the phone today I picked pick New York because you know that's that's the one that we what I will say is a bit of a plug is that that we have a an electronic signing port opinion portal which you can log on to if you're a member of the International Securities Derivatives Association you can get access to that and that sort of covers 37 jurisdictions now generally the US is pretty similar across this main sort of commercial jurisdictions so we'd be talking about California Lord Delaware law and think that that the principles would we would expect them to be the same I can't talk with actually authority on it but I would be relatively comfortable that these signatures are broadly acceptable in most of those jurisdictions with the usual exceptions for what incan summons this is that's great so thank you um any advice or tips when a counterparty insists on applying local law requirements for your company's signing Authority an example adrià mo has recently and he experienced a Chinese customer insisting on two directors and/or a witness to the signature despite that being a requirement under local law for a UK registered company sorry despite that not being a requirement under local your law for a UK registered company maybe I can take that one I I think it it really comes down to the law of the document and to what you know what is it but it's a valid form of signature for the purposes the law of that document I mean we have in England Wales if you have an overseas company signing an English law document then there are sort of that there is an established law as to how that overseas company should sign and and we do accept in some instances that effectively what is this sort of customary form of signature in that jurisdiction so I think you you you do sort of need to get into the nuts and bolts of what is the governing northen document yeah yeah and again I think you know laying out in advance how it's going to be executed and by whom tends to solve some of these last-minute questions and that that's what causes the stress in transaction when when someone deviates at the last minute but generally if someone's insisting that there are two directors executing a document providing you've got both to both directors available I rarely have a problem with that as long as you've got sufficient signature boxes for it what starts to look a mess can I had one one more point on that which is whilst I I know that there are many documents which do require the witnessing requirement it is also worth for for commercial agreements just just considering whether you do actually need to sign the document as a deed yeah just to avoid all that any of these witnessing problems I mean as it as a very last resort of course you should remember too that an agreement that might be attempted to sign as a as a deed but is not validly signed as a deeds is still a binding agreement yeah and and remain so it just doesn't have the the ultimate full protections of over deed for example that the limitation period is bring any claims is is six years for a simple contract rather than 12 for a deed but it's one of those where you you could save yourself some headaches if there are documents which you don't need to be signed as a deed yeah sorry Richard carry on I was gonna say when we talk about witnessing with companies you know we're really most companies will have two directors and if you're signing with two directors you dispense with the nature of witness anyway right really we're talking about sort of in their companies with sole directors or whatever where we need where you need witnessing or you having deeds being witnessed by an individual so yeah I think you once you sort of start to narrow the categories as to whether or not you actually need a witness and then actually then does that witness really need to get to be you know a remote witnessing you're really getting to a very small category of executions I think let's just move on to we have mentioned JPEGs yet but um we've been asked by Marta with JPEG signatures is it important who inserts the JPEG into the document or can a person other than a signatory do that for the documents to be validly signed it's really one of sort of authorities and understanding the authority of the person yeah now well actually this does go to to an interesting point which is the is the fact that an electronic signature to be a proper signature needs to be both the signature with the intention to authenticate the document and what and what I mean by that is that there needs to be in it in a way the ability to link the signature the eSignature to the person who is purporting to put it on the document now that might sound relatively straightforward and in most situations it is but there there has been a few cases about situations for example with with there was one case where company was facing a winding up petition a the director of the company which was facing this asked someone else one of his employees to send a response back saying look we'll please please don't do this will will do this personal guarantee it was it was sent off this email but there was no reference to the individual and the only any sort of link to the individual who was purportedly giving the guarantee was an automatically included email address through the server this was held not to actually be a binding agreement now it's a fairly extreme situation but I think what it highlights is that where you're dealing with any kind of eSignatures which are not through a portal if you're using a sort of assigning and scanning process which of course is perfectly perfectly valid for for an eSignature it would be best practice to make sure that the person doing the Signet at the signing is then the person sending the document in order that there is an absolutely clear link between between document being signed the person having signed it in the person sending it so that it all adds up now that makes perfect sense another question here from Laura thank you for this question Laura is it a good idea to amend or include a clause to expressly say the parties agree to execution using egg ecig matures currently most of my contracts authorized virtual signature so is just wondering if also including or replacing this with these signatures would give it more protection I think the thing to say there is it's not it's not a requirement but if you have the opportunity to do it and the parties are happy to include that then it does it does help it helps with evidential perspective doesn't it on the cross border and cross-border transactions as you may see that is I think we've heard some sort of anecdotal evidence that it's actually quite common now in Spain for example to include that kind of wording and there's and also one of the things I should have mentioned was that some of these assigning platforms we have one particular client that set their a signing platform up with this sort of Express language at the start of it that you have to sort of click through first to say you know we agree to to execute in this way so I definitely think it's worth doing and it and it just you know is again it just sort of makes it provides certainty and clarity and that as lawyers we absolutely want so certainly what we tend to do is and I know you do it in the finance team you have you know detailed board minutes that lay out the authority for directors and how they're going to execute I think it's important to go extra mile in that in that particular resolution at board meetings now to include authority to to sign by eSignature yeah let's see what else have we got here we've got a few more minutes do you see much value in adding boilerplate warranties with respect to the authenticity of the signatory I don't think we necessarily have to go that far I mean I think that you know you do get to the point where you sort of start to you know we're questioning so much because when you think back to a sort of wedding signature we just didn't ask you've got the same issues exactly it's the same problem isn't it exactly and I think that and that's but you know one of the things that people are sort of you know getting a little bit distracted with and it is true that obviously with with electronic signatures there's a lot more to as I so you sort of unpick you know you can sort of go back and say you know how's that person did that person get the right email did that person you know is that the person who got the passcode for the for their authenticity and all these companies there's a lot more metadata for you to look at and investigate if you're going to start trying to sort of debate the the veracity of that signing which you just don't have with wet signal with wetting CFC to take a lot more on spec with wetting now that's not to say we need it necessarily needs to go back to those days but I think some of the anxiety around electronic signatures is wouldn't say unwarranted but you know you again it you just just think about you know is this a mischief that we really need to sort of address yeah in the dark based on the latest question being debated in a jurisdiction that expects every page to be initialed presumably that needs to happen on these signatures as well I think and most of the platforms allow for initialing of of pages and you just have to make sure that you tagged each page for it for initials ingly don't you yeah yeah I think that is a you know there are particular idiosyncrasies with some jurisdictions on that thing and unfortunately they are some of them are unavoidable but yeah that again comes down to sort of you know preparation and and diligence ahead of time to work out what what you need to do and whether the the process that you're using will actually accommodate and those requirements I think we got time for one last question is one party able to sign electronically and another party using a pen physically so wet wet ink from one hour or virtual I guess would be the case virtual Andy signature at the same time yes I think that is that is possible I think again you you know you you are sort of slightly introducing the potential for for there to be sort of mistakes if not doubt into in the execution and particularly if you have say for example that document being signed by two directors and one of the director signs on at home on an e signing platform and the other director signs by posting in their JPEG in their house you know that you are sort of slightly saying well you know why was it done that way why didn't both directors sign up to the you signing platform why didn't they both post in their JB you know it's just sort of you're just introducing potential for doubt and actually the usual problem is I haven't got the ability I've got a printer at home so I can't print and and sign and scan it's actually generally easier to use on one of these platforms so insisting that everyone downloads it and uses it it's probably the way forwards yeah listen chaps we're out of time just a very quick thank you to all of those who who joined us today and asked all those fabulous questions James Richard thank you very much indeed we'll share with you a recording in due course thank you much thanks joy for now