Global Primer and Best Practices for Deploying Electronic Signatures Worldwide

A map of global electronic signature support

Beginning in 1999, most of the world's major industrialized nations began to adopt electronic signature and electronic commerce legislation with the goal of expediting commerce across the internet.

The goal of all the global legislation is essentially the same: to set out a clear set of criteria that, if met, deem an electronic signature the same as a written signature. Each nation has taken its own legislative approach, however, to the specific criteria and how they are to be implemented.

EchoSign provides a variety of web-based signature solutions, from standard, extremely easy-to-use electronic signatures, to advanced ink-like biometric signatures, to fax-based signatures. EchoSign is fully compliant with the Federal E-SIGN Act, which is a safe harbor that “trumps” or “pre-empts” state law by design, and also pre-empts any state laws on electronic signatures that existed before or after the E-SIGN Act. All 50 states are required to comply with the Federal E-SIGN Act of 2000.

By combining these options with other best practices such as targeted choice of law provisions, EchoSign can be used and rapidly deployed across the globe.

This overview is not legal advice and is not intended to replace consultation with your legal counsel.

Green, Yellow, Orange, and Red Categories: Where an Electronically Signed Contract is Deemed the Same as a Written Contract — and Where it’s Not

All G20 and most other economically advanced nations have adopted electronic signature legislation. However, the individual approaches are different. Broadly, speaking, they break up into three categories (technology neutral, technology specific, and still evolving):

Green Category: Countries Where Electronic Signatures for Business are Deemed the Same as a Written Signature Under Law

U.S., the U.K., Canada, Mexico, Benelux countries, Sweden, Australia, New Zealand and Singapore

The U.S. and other Green Category countries explicitly state that electronic signatures are deemed the same as written signatures, broadly speaking, so long as the parties (x) agree to use electronic signatures and (y) the electronic signature service used can accurately match the transaction record to the parties and the contract. These countries' approach is technology neutral and focuses on ensuring the parties intended to electronically contract.

EchoSign meets the criteria and standards in these countries.

Yellow Category: Countries Where Electronic Signatures for Business are Deemed Enforceable, But Not Necessarily the Same as a Written Signature

Most of Southern Europe (Germany, Italy, France, Spain, etc.) and Turkey

Broadly speaking, these countries have taken a technology-specific “certificate” approach. Their legal provisions deem an electronic signature to be equivalent to a written signature when individual, private “keys” or tokens are provided to each party in a transaction by a registered certifying authority.

EchoSign is an on-demand web service and does not provide (nor is it practical to provide), such use certificates to each signer in real-time over the web. Signers are forced to individually procure signing certificates to meet the criteria in these countries.

In most Yellow Category nations, electronic signatures signed without a certificate are given valid legal status, but are not necessarily deemed the same as a written signature. Discretion is left to the courts to interpret (like other signatures) the meaning of a given electronic signature.

Orange (and Red) Category : Countries with Electronic Signatures Laws, but an Unclear Status in Practice

China, India, Russia, Malaysia, among others

Both China and India have electronic signatures laws, but it is not clear how they will be enforced in practice for international transactions. Brazil and Argentina similarly have electronic signature legislation but with limited visibility on how they are enforced in commercial transactions. Russia similarly has detailed electronic signature legislation, but with no clear record of enforcement, is deemed a Red Category.

Malaysia’s Digital Signature Act requires centralized certificate authorities to pre-issue certificates for all signers before signing, which makes using an ad-hoc service such as EchoSign impractical.

Best Practices

A basic tenant of contract law across the developed world is that written contracts which have been agreed to by all parties in writing are enforceable. Indeed, basic common law in the U.S. and Europe have supported electronic signatures since well before the legislation adopted in 1999-2003, and contracts have been “electronically signed” since the 19th century and the first days of the telegraph.

For customers deploying EchoSign globally, we recommend a variety of best practices to maximize the benefits of the safe harbors and legislation in the above countries:

  1. Include a U.S. choice of law provision in all contracts.

    Where the sender is a U.S.-based company, in the body of each contract electronically signed, include a specific reference that all parties (x) are agreeing to use electronic signatures and (y) are agreeing to being subject to the provisions of the U.S. E-SIGN Act (i.e., the Electronic Signatures in Global and National Commerce Act (ESIGN, Pub.L. 106-229, 14 Stat. 464, enacted June 30, 2000, 15 U.S.C. ch.96). For many of our customers, this is seen as a simple and effective worldwide approach. Of course, consult with your legal counsel on all such provisions.

  2. In Yellow Category countries, where the courts are given discretion to interpret on a case-by-case basis, do a business benefit analysis.

    The contracts in these countries will be legally binding for standard commercial transactions, but e-signing could add some complexity to adjudication. Consider the benefits of (x) expedience, higher close rates, and visibility against (y) a potential need to persuade a court with detailed evidence in the event of a dispute. EchoSign provides an automated audit trail for every transaction, including dates, times, parties, and IP addresses.

    In addition, in Yellow Category countries, EchoSign recommends considering selecting our biometric signature option which additionally provides an actual written signature (via mouse or smartphone) on the document for forensic evidence.

  3. In Orange Category countries, electronic signatures may still be the choice given their expediency benefits, but EchoSign recommends selecting a paper-like signature process.

    EchoSign recommends defaulting to our fax-back, or biometric/on-screen signature options in Orange Category countries, and using a U.S.-choice of law provision wherever practical.

Additional Resources