Covid-19: FAQs On E-Signings And Virtual Signings In Singapore.

Introduction

An increasing number of countries have imposed restrictions on movement, the “circuit breaker” in effect in Singapore being one example. Signings and closing are now by necessity virtual and this note sets out FAQs on this topic and suggests some practical solutions available.

If you require further advice, please reach out to your usual Linklaters contact or the contacts set out in this publication.

An electronic signature can take many forms. For example, a signatory may apply an electronic image of his or her handwritten signature into the relevant signature block on a soft copy version of the contract. In some cases, the signatory simply types his or her name into the soft copy contract.

On a web-based e-signing platform, execution involves a signatory clicking to have his or her name automatically inserted into the relevant signature block. The name may appear as ordinary text in a font of the signatory’s choice and need not resemble the signatory’s handwritten wet ink signature. Equally, the signatory may choose to upload an image of their handwritten signature if they wish.

These principles also apply to the signature of a person witnessing another’s signature.

As mentioned earlier, and set out in more detail below, electronic signatures are not suitable for certain types of contract.

Yes. The Interpretation Act (Chapter 1 of Singapore) defines “sign” very widely, as follows:

“sign”, with its grammatical variations and cognate expressions, with reference to a person who is unable to write his name, includes “mark” with its grammatical variations and cognate expressions.

Singapore case law has also held that under common law, e-mail correspondence between the parties could fulfil the requirements for writing and signature under section 6(d) of the Civil Law Act (Chapter 43 of Singapore) of “in writing” and “signed”.

Therefore, where a contract is required by statute to be in writing and signed, a soft copy contract executed using an electronic signature will satisfy this requirement.

Yes. Provided the signatory inserts his or her signature into the relevant signature block with the intention of authenticating the document, it makes no difference whether it is an electronic or wet ink signature.

There is no need as a matter of Singapore law to sign an additional hard copy version with a wet ink signature for the contract to be effective.

However, a wet ink signature may be necessary or appropriate in certain circumstances – for example, where the document has to be notarised for use outside Singapore.

Singapore public agencies also generally accept online filings of documents which have been executed electronically.

Yes. An electronic signature will be as effective for the purposes of executing a deed as it is for a simple contract. The same formalities apply as for wet ink signatures.

Where a Singapore company is executing a deed under Section 41B of the Companies Act (Chapter 50 of Singapore) by the counter signature of two directors, a director and the company secretary, or a director and a witness, each signatory can sign the deed electronically either in counterparts or on the same soft copy of the deed.

Where a Singapore company is executing a deed by way of affixation of its common seal onto the deed, care should be taken to ensure that the requirements prescribed by the company’s constitution are complied with. In particular, where the constitution provides that the seal shall be affixed in the presence of the counter-signing signatories, electronic signing would not be valid.

A person may witness another’s signature by witnessing, in his or her physical presence, the signatory insert his or her electronic signature into the relevant signature block by whatever method is chosen by that signatory. Further guidance on witnessing of signatures under Singapore law is included below.

If documents of title, powers of attorney or declarations of trust are signed as deeds, please also consider the implications of the Electronic Transactions Act (Chapter 88 of Singapore) (the “ETA”) discussed below.

No. It is possible for one or more parties to use an electronic signature, while one or more other parties sign by wet ink signature.

Generally, Singapore law does not distinguish between Singapore-incorporated companies and overseas-incorporated companies using electronic signatures. However, care should be taken to ensure that electronic signatures will be effective under the laws of the territory in which the overseas company is incorporated, whether there are any specific requirements for signing imposed on the laws of the overseas territory and that the signatory is acting under the authority (express or implied) of the company – this authority may include whether the company may be bound by electronic signature.

The effectiveness of electronic signatures in validly executing a contract governed by the laws of a jurisdiction other than Singapore varies among jurisdictions.

For example, New York and English law generally permit the use of electronic signatures, subject to certain legal requirements.

In Indonesia, contracts may also be executed by way of electronic signature, subject to certain legal requirements

– however, certain categories of documents, such as notarial deeds and documents that by law require wet ink signatures (e.g. employment documents, conveyance instruments and corporate documents) cannot be executed electronically.

Consideration should also be given to the jurisdiction in which any litigation or other action (e.g. notarisation or a local filing) in relation to a document may be required to be taken in the future.

There are certain categories of transactions or documents listed in the First Schedule of the ETA to which certain provisions of the ETA will not apply. These include documents of title, powers of attorney and declaration of trusts. In commercial and financing transactions, powers of attorney and declaration of trusts may not be executed as standalone documents but are embedded as provisions in agreements such as sale and purchase agreements, shareholders agreements, loan agreements or security documents.

In such cases, the effect of the ETA is not to prevent such documents to be executed electronically. Rather, the effect of being listed in the First Schedule is that it will not be possible to benefit from various presumptions in the ETA. However, it may still be possible to satisfy a legal requirement for writing or signature by relying on the common law.

The ETA (including the scope of the First Schedule) is currently being reviewed by the Infocomm Media Development Authority pursuant to a consultation launched in 2019. We have provided a response to the consultation and would be happy to discuss the consultation proposals with you.

Yes. You can use a camera phone, for example, to produce an electronic image of the signed contract in the same way as you would use a scanner. The images should be clearly legible, and should ideally include any document ID number. You should follow the signing instructions for the virtual signing in the same way you would if using a scanner.

When taking, storing and sending pictures using a camera phone or other device, you should consider the data security and contractual implications, particularly in case this breaches any contractual obligations relating to the preservation of confidentiality of that document.

I do not have access to a printer. Can I “sign” a document by attaching it to an email unsigned but stating that the document is agreed to by the sender of the email?

In some cases, yes. This will be effective in the case of contracts that are not required to be executed as a deed. It will be appropriate to include in the email a statement confirming that the email constitutes a signature of the attached document, together with the signatory’s typed name.

An alternative solution is for a signatory to type his or her name into the soft copy contract – this will be effective as an electronic signature.

Any Singapore law governed contract or deed can be executed in counterparts, regardless of whether a counterparts clause is included. Whether a contract or deed has been brought into existence does not depend upon whether all the parties signed the same electronic contract (or piece of paper), so long as the text of each signed version is the same. The same principle applies in respect of a witness’s signature.

Yes, although best practice is to avoid using a witness who is related to the signatory where possible. This is to avoid doubts as to the veracity of the witness’s evidence.

Signatories should consider confidentiality obligations when selecting an appropriate witness.

Where witnessing could be problematic, in the case of Singapore companies it may be advisable to execute deeds by the signature of two directors, or a director and the company secretary, so as to avoid the need for a witness.

The witness should be physically present when the signatory electronically signs the contract, although the witness need not sign the contract in the presence of the signatory.

It is therefore not advisable to witness through the use of a live video stream (or similar technology).