What is an Electronic Signature?
Generally speaking, an electronic signature (or e-signature) is a technical process logically associated with a document which two (or more) individuals or organizations (the signatories) agree to rely on in order to express their intent to sign such document. Three components are therefore necessary: a document, a signatory and an e-signature tool. While the tool most commonly used for handwritten signatures is a simple pen, electronic signature tools are typically more complex.
From a regulatory standpoint, an electronic signature is a broad category that encompasses many types (or levels) of electronic signatures. Depending on the country it is used in, there are differences in purpose, legal acceptance, technical implementation and cultural acceptance of electronic signatures.
In particular, e-signature requirements tend to vary significantly between most “civil law” countries (including the European Union and many countries in South America and Asia), and most “common law” countries (such as the United States, Canada and Australia). Civil law countries typically support a “tiered” approach including higher levels of signature often called digital or qualified electronic signatures (typically required for specific types of contracts), as opposed to common law jurisdictions which are typically more technology-neutral.
In addition, some industries (such as healthcare or banking) and documents (such as marriage or adoption contracts) may require a higher level of e-signature.
What are the laws and regulations in the United Arab Emirates?
Electronic signatures are permitted under Federal Law No. (1) of 2006, On Electronic Commerce and Transactions. Under Article 8 of this Law, if a signature is legally required, a reliable electronic signature can be used, as long as the signature meets certain requirements. Both secure and unsecured electronic signatures may be recognized as “reliable” (see details below). If there is no statutory provision requiring a specific type of signature (or other requirement, such as notarization), any form of electronic authentication can be used (Art. 8).
The following must be considered when assessing the reliability of the electronic signature:
- the nature of the transaction;
- the value or importance of the transaction if acknowledged by the party relying on the electronic signature;
- whether the individual relying on the electronic signature (or electronic authentication certificate) has adopted appropriate steps to determine the extent of its reliability;
- whether the party relying on the electronic signature has adopted appropriate steps to verify that the electronic signature is enhanced by electronic authentication certificate;
- whether the party relying on the electronic signature or electronic authentication certificate, has known or should have known that the electronic signature or electronic authentication certificate was violated or cancelled;
- the agreement or previous dealing(s) between the originator and the party relying on the electronic signature or electronic authentication certificate; or,
- other related factors.
Is an electronic signature valid in United Arab Emirates?
Electronic signatures are valid, per the Law of Evidence. The electronic signature needs to meet the requirements under the Law to be considered valid. If the message isn’t original or in its original form, the copy of the electronic signature can be used if it’s the best evidence available.
Unless there is proof to the contrary, Secure Electronic Signatures are considered to: be reliable; be signed by the individual who is listed as the signer; and, to show that the signer intended to approve or sign the record. For an electronic signature to be considered a Secure Electronic Signature, it must follow a secure authentication procedure or a “commercially reasonable” secure authentication procedure agreed to by all involved parties. Secure authentication procedures and commercially reasonable secure authentication procedures should be able to verify that the electronic signature, at the time of signing, was:
- unique to the person using it;
- capable of identifying the signer;
- under the control of the individual who signed the record, considering the creation data and the means used; and,
- linked to the electronic record in a manner that provides assurance as to the integrity of the signature (i.e., the record can’t be changed without the signature becoming invalidated) (Federal Law No. (1) of 2006, Art. 17).
E-signatures which are not considered 'secured' may also be recognized as having legal force and effect, as long as reliance on the e-signature is reasonable (the court will consider many factors for example, the nature and value of the transaction).There are electronic signature certification providers, but certification of electronic signatures is generally not necessary in the context of human resources related records.
HR Best Practices: For purposes of an employment related contract, employers and employees may express the offer and acceptance in whole or in part through the use of electronic signatures or via electronic messages. Contracts may not be denied validity or enforceability solely because they are concluded via electronic message(s).