Electronic Signatures - issues to consider and how the law in Jersey and Guernsey is developing

• Electronic signatures can often be used to form binding contractual arrangements

• Jersey and Guernsey each has specific legislation governing the use of electronic signatures

• There are certain practical considerations to bear in mind when using electronic signatures

The key legislation is the Electronic Communications (Jersey) Law 2000 (as amended) in Jersey (the "Jersey Law") and the Electronic Transactions (Guernsey) Law 2000 (as amended) (the "Guernsey Law") in Guernsey.

Neither law makes a distinction between exchanges of emails, application of signatures using specialist apps (such as DocuSign), copying snipping or scanning and pasting of PDF signatures into PDF documents, or typing in of names in bold capitals instead of signatures. Each of these methods may be valid, binding and enforceable provided that the communications between the parties and the intention to create a formal contract are clear, and the parties have not otherwise agreed between them that contracting in this way will not be sufficient to create legal relations.

Jersey

Under the Jersey Law, the term "electronic signature" means "a signature in electronic form attached to or logically associated with an electronic communication or electronic record" and "signature" includes "any symbol executed or adopted, or any security procedure employed or adopted, using electronic means or otherwise by or on behalf of a person with intent to authenticate an electronic communication or electronic record".

The Jersey Law notes, as a general principle, that "information shall not be denied legal effect, validity or enforceability, solely on the grounds that it is in electronic form".

Following an amendment to the Jersey Law in 2022, the following was clarified:

•  Remote witnessing of signatures: where a signature must be witnessed, this requirement may be satisfied if the signatory and witness are able to see each other via audio-visual link and either (a) where the signatory is signing a hard copy, via the link, the witness identifies the signatory, sees the signatory sign the document, and signs the document attesting to the signature of the signatory on that document, or (b) where the signatory and witness can both see the document (eg via screen sharing) and are communicating by other electronic means, the signatory makes its electronic signature and the witness signs the document attesting to the signature of the signatory on that document.

• Authority to attach electronic signature for another: a person (A) may authorise another person (B) to attach A's electronic signature to a document on A's behalf.

Guernsey

The Guernsey Law was a welcome addition to Guernsey legislation when it came into effect, clarifying that the use of e-signatures is supported and encouraged in Guernsey. The Guernsey law states that a contract shall not be denied legal effect, validity or enforceability solely because the contract was made in electronic form or by electronic means. Nor would such a contract be denied admissibility in evidence solely because it is in electronic form. Generally speaking, e-signatures in Guernsey are equivalent to wet ink signatures, subject to such restrictions within a Guernsey company's constitutional documents. There are, however, some specific types of documents to which the Guernsey Law does not apply (eg trusts, powers of attorney, wills and conveyances). These types of documents are usually executed in paper form.

In the market, we regularly see the adoption of e-signature software and platforms, which allows for the digitalisation of the contract making and signature process at every stage in the signature process.

Practical Points

Businesses should also bear in mind the following practical points relating to the ongoing use of electronic signatures:

• Look at the Memorandum and Articles of Association/Incorporation of the relevant company. Certain provisions could require wet ink signatures or otherwise restrict the ability of the company to enter into contracts by electronic means.

• Check quorum and other procedural requirements for telephone meetings, circulation of written resolutions, appointment of (Jersey/Guernsey resident) alternate directors etc to ensure that any changes to "normal" procedures still work.

• Consider expressly authorising authorised signatories to e-sign documentation.

• As described above, there are a small number of legal documents where electronic signatures and/or remote witnessing are not valid – in particular, wills, contracts relating to land in Jersey or Guernsey, and certain powers of attorney in Guernsey will still require "wet-ink" signatures, on account of carve-outs from the enabling legislation.

The information contained in this guide is necessarily brief and general in nature and does not constitute legal or taxation advice. Appropriate legal or other professional advice should be sought for any specific matter.