Banking & Finance 2016: FINTECH: Electronic signatures: is it time to let ink go?

For the past two decades, the digital economy has developed exponentially despite not enjoying the full confidence of economic players. In this context, electronic signatures stand out as a way of securing e-commerce while ensuring its growth is long-lasting. Its use also has an environmentally-friendly aspect as it gets rid of paper and even makes it possible to sign remotely.

However, the technical aspects of electronic signatures are still poorly understood by the general public, who don’t necessarily see any differences between it and simply scanning a signature, and legislators have been slow in implementing a suitable legal framework.

At the European level, directive 1999/9 CE of 13 December 1999 laid the foundations of common legislation in light of the principles of non-discrimination and technological neutrality with the aim of promoting interoperability, in other words the legal recognition of electronic signatures between member states and internationally.

In Monaco, law n°1.383 on the Digital Economy of 2 August 2011 established the groundwork for recognizing electronic signatures by reiterating the functional definition found in the French Civil code.

Unlike its French counterpart, Monaco’s regulatory power has not yet intervened to specify rules for this presumption of reliability. At most, we can confirm that in light of article 279 of Monaco’s Civil Procedure Code compliance with the criteria to be defined by forthcoming Sovereign Order will have no legal effect on the value of the signature or on the probative value of what is written but solely on the burden of proof of the reliability of the device used.

It should be noted that the Director of the Monegasque Digital Security Agency, established by Sovereign order n°5.664 of 23 December 2015, is already charged with assessing electronic signature service providers and electronic signatures in compliance with article 1163-3 of the Civil code.

While the Monegasque legal framework required for electronic signatures to develop is incomplete, there is no doubt that in the medium term, the Monegasque courts will hear disputes involving discussions on the validity or reliability of electronic signatures.

By Olivier Marquet and Stéphan Pastor

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