![]() ![]() Local counsel should be consulted prior to using electronic signatures in cross-border transactions.Ĭan Electronic Signatures and Records be Used in Commercial Transactions? While most foreign countries have implemented legislation recognizing electronic transactions in some capacity, the standards for enforceability of electronic signatures may not be consistent from one jurisdiction to the next. ![]() This client alert addresses the use of electronic signatures within the US legal framework only. However, companies should use a risk-based approach to select a solution that will make the resulting electronic record less vulnerable to attack if the contract or the authenticity of the electronic record is challenged by the other party. The eCommerce Laws are technology neutral and do not favor or require specific forms of technology to create valid electronic contracts.Companies must also consider how the use of an electronic record impacts any downstream transactions, and confirm that relevant downstream third parties will accept an electronic record of the primary transaction. The parties to the transaction must consent to use and accept electronic signatures and records, which consent may be express or implied by conduct.Therefore, companies must understand how to translate any existing requirements, such as notarization, possession and third-party filing requirements, in an electronic context. All requirements contained in substantive laws, regulations, rules and guidance governing the underlying transaction continue to apply in an electronic context.This means that the use of electronic signatures and records in connection with excluded transactions is either not permitted at all, or may be enabled by the substantive laws or regulations governing the underlying transaction (e.g., transactions governed by all articles of the UCC, other than 2 (Sales) and 2A (Leases)). There are exclusions to the scope of the safe harbor provisions provided under the eCommerce Laws. ![]()
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