The appropriate method of executing documents electronically depends on various factors, such as the type of document, the type of electronic signature and any cross border implications. Businesses must also take practical aspects into consideration before using electronic signatures.
Below we give guidance on the regulatory landscape and the legal validity of electronic signatures under Dutch law, provide an overview of the practical considerations and introduce our recently launched Rulefinder: e-Signature service that provides a law and practice analysis of e-signing in 25+ jurisdictions.
Dutch regulatory landscape of electronic signatures
The eIDAS Regulation¹
The EU eIDAS Regulation forms a part of the regulatory landscape for electronic signing under Dutch law. This Regulation defines three different types of electronic signatures: (i) electronic signatures (which we will call simple electronic signatures (SES)); (ii) advanced electronic signatures (AES); and qualified electronic signatures (QES). The Regulation defines electronic signature as: data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign. Reflected below are aspects and some examples of the three different types of signatures.
Based on the Regulation the QES signature type has the same legal effect as a handwritten (wet ink) signature throughout the EU. The Regulation provides that signature types AES and SES may not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures.
¹ eIDAS Regulation (EU) 910/2014 on electronic identification and trust services for electronic transactions in the internal market.
Article 3:15a Dutch Civil Code
The legal effect of signature types AES and SES is determined by article 3:15a Dutch Civil code. This article stipulates that AES and SES shall have the same legal effect as a wet-ink signature, if the method used for signing is sufficiently reliable, having regard to the purpose for which the electronic signature is used and to all other circumstances of the case. This is an open norm and unfortunately there is very limited Dutch case law on how to interpret this open norm. However, based on the limited Dutch case law available, it is recommended to agree upfront on what parties consider a reliable method of (e-)signing and to have direct personal contact with all signatories before or during the electronic signing process. For some type of documents (such as employment agreements and insurance policies) Dutch law stipulates that a QES signature type should be used.
Exemptions and further considerations
In some cases additional (legal) aspects (other than the type of signature as explained above) have to be taken into consideration. For example, Dutch public notarial deeds cannot be signed electronically. Additionally, Dutch law prescribes in some cases that a document must be constituted ‘in writing’. Such document can only be electronically established and signed if additional requirements under Dutch law are met.
Evidentiary value and risks
If a party contests that the document is duly signed, the relevance of the appropriate (type of) electronic signature lies in the evidentiary value of an electronically signed (electronic) document. If a court deems the method used to be sufficiently reliable (or QES is used), the document has conclusive evidential value (dwingende bewijskracht). If the court does not deem the method sufficiently reliable, the document only has free evidentiary value (vrije bewijskracht): it may still be submitted as evidence, although the court is free in its appreciation of the evidence.
Practical considerations
Cross-border analysis: Rulefinder e-Signature
We have launched a new offering to clients: Rulefinder e-Signature. This service analyses cross-border legal issues that arise when e-signing commercial agreements. Covering 25+ key jurisdictions, it contains a law and practice analysis of e-signing in each jurisdiction. To find out more and to request a free trial please visit: www.aosphere.com/aos/e-signature or contact the aosphere team directly at info@aosphere.com.
