Is e-signature legal across the MENA Region?
Electronic signatures, or e-signatures, are a very important tool amidst the pandemic waves. They were a lifesaver for businesses, especially when even executives were constrained to working remotely. Although many countries across the MENA Region have, relatively early, adopted laws and regulations relating to electronic signatures and transactions since the early twenties, the question of the legality and enforceability of e-signature is still being debated.
Few countries have laws on commercial transactions and electronic signatures. However, such a law is not yet being applied. Other jurisdictions across the region are still cautious about the process and have put in place government agencies to monitor the implementation of e-signature. Many companies are strongly willing to dematerialize their contract databases, but the mystery of it is still veiled to them.
E-signature: for which types of contracts?
Many legal texts, such as the UAE Federal Law of 2006 on Electronic Transactions and E-Commerce, state unequivocally that an electronically signed contract is valid and in full force, with the exception of specific contracts and cases such as real estate, personal status and deeds, and other documents required by law to be notarized, in the form of "wet-ink" hard copies, witnessed as per Shariah requirements as in KSA, or signed in front of municipal agents as in Tunisia.
These exceptions will lead to the elimination of the contracts that are required to be in a certain format by law. What remains to enter the e-signature scope is reduced to daily commercial transactions, sales, and purchases except for real assets and negotiable instruments; employment and service agreements; non-disclosure agreements; any short or long-term cooperation agreements; memorandums; undertaking letters, and even lease agreements where it is less than ten years; board and shareholders’ resolutions when the company's Articles of Association allow online general assemblies and electronic minutes of meetings.
An "Electronic Signature” is “any letters, numbers, symbols, voice or processing system in electronic form applied to, incorporated into, or logically associated with an electronic message with the intention of authenticating or approving the same.”
How to make sure we can make a “Secure E-Signature”?
Secured e-signature must go through a commercially reasonable and secure authentication and certification procedure to which the parties agree. The party receiving an e-signed document can verify that the person who signed was identified as a such person (providing his own ID or passport), the signature is verified to be unique to the person who signed, and the time, date, and place of signature must be known. The signature is protected by a code/passworded certificate, which prevents anyone from changing or altering the signature once it has been added to the e-signed document.
To top it all off, the certificate used must be issued by a third party, which is usually a public or private agency holding a special license to provide electronic certificates. Some laws provide for heavy sanctions in the event that they are misused, used without being licensed to, or any other related infraction.
Is an e-signed contract enforceable at the dispute resolution phase?
The dispute resolution question is quite delicate, especially when it involves two parties under different jurisdictions.
As a general rule to all existing laws across the MENA region, e-signed documents that meet the electronic signature's applicable requirements carry the same legal effect as traditional materially signed documents, and contracts cannot be denied enforceability merely because they are concluded electronically. The Algerian civil code provides for an equal binding effect for e-signature and handwrit
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