1.  Which documents can use an electronic signature and take legal effect?
  2. Which documents cannot use electronic signatures and take legal effect and why?
  3. What are the legal requirements for electronic signatures on documents?
  4. Are there any proposals to change the law relating to electronic signatures? 
  5. Are there any other factors which prevent documents being entered into in electronic format?

jurisdiction

Scotland

All documents governed by Scottish Law (with limited exceptions for wills and testamentary writings) can now take completely electronic form (including an electronic signature) except those which are to be registered in the Land Register of Scotland, Register of Sasines or Books of Council and Session. 

Any document which requires to be registered in the Land Register of Scotland, Register of Sasines or Books of Council and Session (for example a disposition or lease) cannot be in electronic format at present.

In addition, the registrar of companies in Scotland requires wet ink signatures where a document has stamp duty payable on it.

For any document that must, by law, be created in writing (namely documents for the constitution of rights in relation to land, gratuitous unilateral obligations and some trusts) an ‘Advanced Electronic Signature (‘AES’) is required which must be:

  • uniquely linked to the signatory;
  • capable of identifying the signatory;
  • created under the sole control of the signatory; and
  • linked to the data to which it relates in such a manner that any subsequent change of the data is detectable.

For a document to be self-proving (a requirement for most Real Estate documents) the electronic signature must also be certified by a qualified certificate. This comes from a third-party provider registered and certified in accordance with eIDAS. For other types of electronic documents, any form of electronic signature may be used however, an AEA and a certified AES will carry greater evidential weight in the event of any dispute.

4. Are there any proposals to change the law relating to electronic signatures? 

Not at present. It is anticipated that it will eventually become possible to register electronically signed documents in the Land Register of Scotland, Register of Sasines or Books of Council and Session but there are no known plans currently.

5. Are there any other factors which prevent documents being entered into in electronic format?

Possibly, if the executing company has a provision in its constitutional documents which restricts or prevents it from signing electronically. While not common in constitutional documents this may exist and should be checked.