eSignature Legitimateness for Facilities in United States

How to eSign a document: e-signature legitimateness for Facilities in United States

[Music] wolf tie sunshot insights and analysis from one of the leading law firms in central eastern and southeastern europe european legislation introduced the concept of electronic signatures in 1999 when the directive on a community framework for electronic signatures was adopted the so-called eSignature directive a further step was taken in july 2016 when the e-i-d-a-s regulation came into force and set the ground for a level playing field across all eu member states in relation to electronic signatures in this new wolf size podcast episode banking and finance lawyers claudia chipper and marika lomashvili discuss the current regulation applicable to electronic signatures in the eu austria and romania the interplay between eu and national legislation and prospects in the context of the framework for a european digital identity they discuss which types of finance documents may be concluded by applying an electronic signature and which agreements must be signed in what inc in relation to financing transactions between corporates [Music] hello everyone my name is claudia and i am here with my colleague marika sitting in vienna hi marika hello everybody thank you for listening to us so marika we're talking today about something that has come across very often into our practice um both myself and marika are doing banking and finance in both guys in bucharest and vienna respectively and we're going to talk today about eSignatures and this is because especially with the coronavirus there has been an increased demand in signing everything remotely and in avoiding physical meetings this is not to say that that has not been a requirement before but i think the covid experience has brought this eSignature legislation into more focus than it has before so i'm going to dive in with the first question for you america and that is our electronic signatures legally be you yeah claudia thank you in july 2014 the european regulation on electronic identification and trust services for electronic transactions in internal market came into force this is the so-called e-i-e-d-a-s regulation and the aim of that regulation is to ensure that individual persons and businesses can use their own national electronic identification schemes to assess public services in other eu countries as well as to create european internal market for electronic trust services such as electronic signatures and electronic sales electronic delivery services website authentications and so on so this services should work across the borders and have the same legal status as traditional paper-based processes the e-i-e-d-a-s regulation now has been fully enforced for five years and it's facing revision time after time which should pave way actually for even more successful application of secure digital identities in 2018 with the regulation major milestone has been reached which is the start of the eu-wide recognition of notified electronic id schemes and as to austria it has implemented also accompanying legislation to that directive which is signature and trust services act and this one came into force in july 2016 and it's accompanying directly applicable e-i-d-a-s regulation in those areas in which the regulation gives it to the member states to enact national provisions so this concerns in particular specifications in the areas of trust service providers supervision formal requirements liability sanctions and so on so claudia how is it in romania i think the situation is pretty much like in austria in the sense that we do have a legislation which dates back in the years 2000s which was based essentially on the previous directive on electronic signatures which the regulation now replaced and i think we have come definitely a long way we do have like the regulation provides three types of signatures which is the simple signature which is data applied to other data and then we have advanced electronic signatures and qualified electronic signatures out of the stop the qualified electronic signatures are having the let's say highest legal value in the sense that it equals to a handwritten signature and this is an important principle laid down by the regulation which applies actually in all the eu member states now and that means that once you have a document executed with the qualified electronic signature that means that essentially that document is like as if it were handwritten sign now we do have this all this across europe and what the regulation does it's wonderful because it is a level playing field for all the european countries so it tells us what types of signatures are available and then we've got entities issuing also certificates for electronic signatures but what it does not do it does not tell us what types of documents can be signed with an electronic signature and this is something which is left for the national legislation to regulate and here is where i would say that in romania the vast majority of the documents must be proven in court in a written form and signed so a signature is basically required for almost everything which means that theoretically everyone that wants to conclude an agreement and wants to do it at the distance then they have to apply a qualified electronic signature now of course there are exemptions but i think we can talk about that in our next questions and that brings me actually to the next question marika how do you see it in austria is a we have a lot of clients that ask us if a is compliant with the eu laws or austrian laws or romanian laws and especially from the uk sometimes or from other countries asking us can we use this as a signature would it be valid for your country or for the type of document that we're signing so how is it for austria in the recent time there have been multiple questions about and what is the document signed uh why are recognized or not and it's exactly as you said so when civil law requires handwritten form of a contract electronic qualified signature can be recognized but only electronic qualified signatures so directly applicable e-i-d-i-s regulation as well as that austrian registration stipulates that qualified electronic signature has equivalent legal effect of a handwritten signature and what a qualified electronic signature is it's actually an advanced electronic signature that is created by a qualified electronic signature creation device which is based on a qualified certificate for electronic signatures and each member state establishes and publishes trusted lists which include information related to the qualified trust service providers and france sas is a company which is a trust service provider under e-i-d-a-s regulations so as such trust service provider provides qualified electronic signatures qualified stamps and advanced electronic signatures and seals which are recognized by all eu member states so france is also listed as a qualified trust service provider in the trusted list which is managed by french it's security agency and it also owns and operates a remote signature device and is eSignature solution which offers cloud-based e-i-d-s compliant electronic signatures but what has proven difficult in the recent time in practice is just identification whether the signed documents have been signed with a qualified electronic signature and their eu trust services dashboard can be of help so that dashboard proposes a centralized platform for test cases which are focused on validation of the qualification part of the signature would the answer be the same for romania and what about the other contracts you mentioned earlier which cannot be signed in the form of just handwritten signatures i think the first point i want to make is maybe go back to say that the dashboard that you mentioned which is to take form at the eu level that's a very useful tool for everyone that wants to verify whether a signature is a qualified electronic signature based on a certificate issued by a trusted entity an issuer so i think that is also one of the steps which the european union has taken in order to ensure that there is a security and there is trust built in order to use qualified electronic signatures and that is helpful across the eu and not only i think that's helpful also for other countries which wish to actually check it going back to the question the situation is pretty much similar to that in austria in the sense that if we have a qualified electronic signature that's also recognized both in court and out of court and it stands for a handwritten document in the sense that it equals a handwritten document so from that perspective we have departed also in relation to public authorities as well where you can use an electronic signature now and submit documentation online which is completely different but coming back to our transactions in terms of financing transactions what we do on a daily basis if we talk about agreements which are to be signed in form of a private deed which means simple signature is the fist is then a qualified electronic signature will be enough however we do have agreements which require for instance an authorization so there is a need to go to a notary and unfortunately for those specific cases there is no legal means to avoid a physical visit there and electronic qualified signature will not be accepted so a physical presence is required and that is mostly because those are documents which are considered by law important and going to the note 3 achieves two or three things one is that they would testify to your identity so they will actually check if you are the person who you claim to be and one can say that a electronic signature can do that as well because you do have the certificate and there are security measures based on which that certificate is being given but the other thing that is done if you sign an ethereal bead and that shows the importance of the lead that you're signing is that the notary will read out loud the agreement to you will ask you if you understand the content and if you do you're going to sign it in your agreement of understanding what you're going to sign and this is for instance the case where you sign an immovable mortgage agreement where it is considered by law that this is an agreement which is important because you're technically at risk of losing your property so that is why generally those agreements are done in the form of an academic from this perspective i would say that in romania as in probably all other countries because whenever we require for instance a poa which is a power of attorney in the form of an ontario deed we always send people to the notary and there is no way around that there have been discussions a few years back on whether signing a document in front of a public notary can be done electronically or at least in a similar way as we would do a know your customer check which is at a distance but that has not yielded anything so far neither in romania or in any other european country as far as i know so for the time being we still go to the notary physically and that has proven very difficult now with the cockpits because we did have transactions during the copied period where security documents had to be signed and especially during the lockdown period even power of attorneys were very difficult to be granted to us so that we can go to the notaries locally shell what i would say is that electronic signatures are now widely used but only the qualified ones so not the advance nor the simple one and that there are still documents which are of importance as qualified by the law which actually require that you go physically to a notary for instance or you go physically to governmental authority in order to submit a document or make a statement now talking about all the digital identity and all the electronically signed and remote access to everything and submission what do you think about the framework for the digital european identity which is envisaged for businesses in the eu level the problems you have just mentioned with respect to notary meetings and providing powers of attorney it is now a huge problem for many businesses as well because some of our clients transactions have been delayed because of some difficulties with those signatures and so on and with regard to the proposed framework for a european digital identity i do think that some easements should come with that framework so what it is supposed to help with digital identity framework the share of electronic documents from european digital identity wallets was just clicks of the buttons from the phones of the citizens so it will be of huge help if it will be implemented and it's supposed to enable persons to conduct legal acts in any member state without any extra costs or hurdles be renting a flat or opening a bank account in another country that will be of a huge help however i do think that much work has to be done in that regard and that there will be also difficulties in that regard with respect to data protection or some challenges from technical perspective as well i think we can add here the advantages are rather clear for the internet lovers let's say but i think there are some businesses who may not want to be let's say so much online but i think that's more of the transparency trend which i think everyone will support in being transparent but the other point i think the other difficulty that one may see is maybe the fact that if the security is not very tight then there is a risk that identity is compromised and that data is stolen and as you said there are technical difficulties in the sense that if the data is stolen or if someone has your information or has had for some reason access to your keys to the signatures then i think it's going to be very difficult to prove in court that it was not you the one who signed the document if you would dispute a handwritten signature i think that would be easier because you can simply compare the handwrite the person and take a sample and compare it and see if that's indeed their their writing but if you have an electronic device and if you use it it is an assumption that it comes from you because there are some elements which are personal for you but that doesn't mean that those elements cannot be compromised and once they are compromised the difficulty comes to prove in court how is it possible that this was not you that your credentials were stolen and therefore this is let's say a false document with a true signature on it and this is one of the difficulties which adds a layer to it but the package that the european union is preparing in terms of cyber security i think that comes to put the pieces of the puzzle together so that there is an increased security and those instruments be used in a trustworthy manner by businesses and individuals alike exactly the challenges will surely be with some kinds of hackers who will be trying to steal the identities and so on i think there is still a huge amount of work to be done towards security in that area maybe one last point that i can make for romania it's worthwhile saying that we've been one of those jurisdictions through love with ink signatures and just in answering the question how acceptable is an electronic signature i would say it is acceptable people have now been accustomed to it but it is still at the stage where electronically signed documents are not accepted everywhere so there are still authorities where you would be asked to submit something in paper and i think culturally we will move forward obviously and pushed by the times and pushed by the context and also pushed by the desire of going digital and pushed by the european trends and so on but um while we have a really nice level playing field at the european union one takeaway would be that although we have the same rules national rules still apply and that there may be differences between our countries still and we are not at the pace or we are not at a phase where we have a complete harmonization in terms of signatures or in terms of where you can use that signature and i think that's that's something that will be hard to achieve especially because each and every country is different in terms of legislation thank you claudia i think that european digital identity framework might push also rubenia towards more digital future so let's have those hopes and thank you everybody for listening yes thanks a lot marika and thanks everyone thank you for joining us for this episode of the wolf tie sound shot for more information you can contact us via email at soundshot wolfdice.com or visit our website at .wolftice.com you can also follow us here to receive further updates on developments in law and business from one of the leading law firms in central eastern and southeastern europe