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On the new world of electronic signatures

“The moving finger writes and having writ, moves on;” The Rubaiyat of Omar Khayyam

The Law Society of England & Wales issued on 21 July 2016 its guidance on the use of electronic signatures – see here.

The guidance was issued after taking advice from leading counsel and is very clear and comprehensive on the general efficacy of electronic signatures for both simple contracts and deeds. However it does leave some practical questions to be answered regarding the execution of deeds, witnessing and notarisation. In addition while the guidance considers issues around the registration of documents with the Land Registry, Companies House and HMRC, it does not consider the somewhat particular world of ship registries.

In the maritime context the type of deeds most commonly seen are Bills of Sale, Powers of Attorney, Mortgages and Deeds of Covenant. The former three types often require notarisation (and sometimes also apostille/legalisation) and the originals to be filed with ship registries (in certain cases registries will accept PDF copies for registration purposes with originals to follow). While London notaries do now have protocols to notarise electronic signatures, there is an open question as to how exactly they would witness the affixation of an electronic signature (potentially one would have to take a laptop down to the notary’s office, which rather destroys the convenience of the electronic signature, so that the notary could witness the key-stroke affixing the signature). In addition the FCO do not yet have the ability to issue e-apostilles so the document would need to be printed out anyway if it needed an apostille.

Then there is the question of what a ship registry would accept – currently original “wet” signatures are the aspiration though as said above certain registries will proceed on PDF copies with originals to follow (e.g. UK, Caymans). It may be some years before electronic signatures therefore gain much currency in terms of shipping transactions. The comment could also be made that with the prevalence of scanners, the ease of creating PDF copies of original signed documents rather undercuts the attractiveness of the electronic signature.

The content of this article is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content herein.

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