On April 30, 2020, SCHNEIDER GROUP organized a joint webinar on a hot topic: how electronic document flow can be arranged in times of pandemic. We collected the most popular questions from our participants concerning this issue, and our experts from Russia, Kazakhstan, and Ukraine give you their answers.
Question 1: What types of electronic signatures (“ES”) are available in your country?
Electronic digital signatures in Kazakhstan are issued for individuals and legal entities. Depending on the signature rights, legal entities can obtain the following types of ES: for the director of the company, for employees with signatory rights, for employees with the right to sign financial documents, and for HR employees.
According to current Ukrainian legislation, the following types of ES are available:
- Simple electronic signature (SES) – any kind of electronic data attached to the document to certify its authenticity. Examples of using SES are a digital (scanned) copy of the handwritten signature or identification through the login and password or other one-time identifiers attached to the document. SES provides the lowest level of trust as it does not guarantee that the document was signed by an appropriate signatory.
- Enhanced electronic signature (EES) – electronic signature which refers to the person of the signatory, allows identification of this person through a personal key, and is connected to the signed data in a way that data changes can be visible. EES is created through a cryptographic transformation of the data via special equipment or software; it provides a medium level of trust.
- Qualified electronic signature (QES) – electronic signature which meets all the EES requirements, but additionally is more secure: i.e. it is created via qualified signature equipment corresponding to certain high safety standards and is based on a qualified certificate provided by an independent certifier. QES provides the highest level of trust.
The following types of electronic signatures are prescribed by Russian law:
- Enhanced (implies encryption; allows identification of a person who signed a document and detects changes in a document after signing):
- Qualified ES (qualified certificate is created by an accredited certifying center or a federal executive body authorized in the sphere of ES)
- Non-qualified ES
- Simple ES (confirms the fact of forming an ES by a certain person).
Electronic documents signed with qualified ES are equivalent to paper documents signed with a handwritten signature, unless legislation requires paper form.
Electronic documents signed with non-qualified ES or simple ES are equivalent to paper documents signed with a handwritten signature in cases established by legislation or agreement between parties
Question 2: If I do not have an ES yet, can I receive one during the pandemic?
Yes, it is possible and does not require the personal presence of an individual. The certification center confirms identity using technical means online.
Obtaining SES and EES is possible in a remote manner. However, to receive a QES the personal attendance of an electronic trust services provider is necessary. Moreover, most of the providers recommend that a QES must be saved on a special carrier corresponding to the highest safety standards and insist on the personal transfer of such carrier to the person it identifies.
Receiving an enhanced qualified ES usually requires personal presence and establishment of identity by presentation of ID. However, certification centers sometimes hand over e-signatures based on a power of attorney. Also, certification centers might offer to confirm identity by sending their representative to the client. Discuss the purpose and procedure of getting an ES in your individual case with your certification center.
Receiving a simple ES (e.g., login and password for a website, SMS-code) does not require personal presence.
Question 3: What are the main risks of using ESs?
The following legal risks may arise when signing agreements using ES:
- Risks associated with recognition of the agreement as invalid due to obtaining illegal access by a third party to the ES of the user
- Risks associated with the fact that the counterparty refuses to fulfill its obligations under the agreement, referring to the fact that the document was changed and does not correspond to the document signed by the party
- Risks associated with possible difficulties in the use of an electronic document as evidence in court
Among other types of electronic signatures, only a QES is named by the law of Ukraine as the one corresponding to the handwritten signature of a person. Therefore, using this type of signature ensures minimum legal risks. At the same time while using any electronic signature in bilateral documents one should be sure that the counterparty will also use it to have a valid document. It should be also noted that court practice in Ukraine related to the usage of electronic signatures is still developing, so there might be difficulties with the recognition of documents signed electronically in court trials.
The following legal risks may arise when signing documents using ES in Russia:
- Risks associated with the fact that a counterparty refuses to fulfill its obligations under the document (agreement), referring to the fact that the document was changed and does not correspond to the document signed by the party
- Risks associated with the legal value of ES: in case of a trial, one of the parties may state that a document with ES cannot give rise to legally significant consequences or be considered sufficient evidence in court
- Risks associated with non-compliance of the conditions of use of ES with the established procedure (requirements of the law / agreements between parties) – the legal force of the documents can be called into question
- Risks associated with the use of ES for signing documents with a long and constant retention period: inability to prove the moment of signing, not all software is designed to verify “historical” signatures
- Risks associated with unauthorized use of ES without the owner’s awareness