Are e-signatures legal, admissible, and enforceable in the local jurisdiction?
- (i) Civil and Commercial Code (CCC).
- (ii) Law 25,506, as amended (the Law), on digital signatures.
- (iii) Decree N° 182/2019 as amended, regulation of the Law.
- (iv) Decree N° 892/2017 regulating digital signatures.
- (v) Resolution 946-E/21, which regulates technical aspects related to licensed certification service providers.
Types of Electronic Signatures:
The Law defines two types of electronic signatures, the "digital signature" and the "electronic signature", as follows:
- (a) Digital Signature: is the result of applying a mathematical code to a digital document that requires information only known by the signatory and that may be verified by third parties allowing them to identify the signatory and detect any alteration of the relevant document. Digital signatures are valid if they are certified through a digital certificate issued by an Argentine licensed certification service provider or through a foreign digital certificate, provided that such foreign digital certificate complies with the requirements set forth by the Law which, in general terms, requires compliance with minimum internationally accepted standards.
- (b) Electronic Signature: is the electronic data that is integrated and/or associated to other electronic data in a logical manner but that does not comply with the requirements set forth for digital signatures. Some examples of electronic signatures are the signatures inserted on an email, the "accept" button included in terms and conditions, or any other "click-through" agreements.
The CCC sets forth that, in principle, consent provided by electronic means shall be regarded as valid and therefore enforceable. However, the issue with electronic consent would be in a scenario were such consent is challenged by the other party. In such a case, the electronic consent will have to be evidenced by the enforcing party, because consent given via electronic means would not constitute, in principle, enough evidence. We further expand on this below.
Validity of Signatures:
As explained, electronic signatures are not at the same level of enforceability as digital signatures.
Documents signed with digital signatures are presumed to: (i) be signed by the signatory registered with the certifying licensee, and (ii) have its content unaltered. If a party denies the authorship of the digital signature, then such party must evidence his/her position. Moreover, digital signatures are considered effective to fulfil any handwritten requirements set forth by local regulations but will not be sufficient to substitute public deed requirements.
Documents signed with electronic signatures do not have the legal presumptions mentioned under (i) and (ii) above. Electronic signatures do not meet the requirement of written form by the parties, therefore the document executed electronically could be challenged not only in relation to its existence but also to its content.
In this regard, the Law expressly states that if a party denies the authorship of an electronic signature, then the enforcing party must prove such authorship before the competent courts. The enforceability of an electronic signature will depend upon the extent to which the enforcing party is able to produce enough evidence of its existence and the unaltered content of the corresponding document. In practice, it could be difficult, but not impossible, to evidence the link between the party and the electronic signature and that the content of the document has remained unaltered. Therefore, this should be analyzed on a case-by-case basis. For this reason when using electronic signatures, it is important to collect as many items of evidence as possible to prove the authorship of the electronic signature and the content of the document (e.g., commercial documents, invoices, receipts, purchase orders, and vouchers issued during the course of the commercial relationship and exchange of emails).
Are there certain documents that cannot be e-signed?
In general, under applicable law, all kinds of documents may be signed in electronic form.
However, specific legal forms may be required by local regulations to include a handwritten signature or, in some cases, the issuance of a public deed.
As an example, certain labor documents, such as resignation letters
from employees, need to be formalized through a registered letter (telegrama de renuncia) that contains the handwritten signature of the resigning employee in order to be valid.
Regarding public deed requirements, the CCC requires certain acts to be executed by public deed, such as:
- i. Agreements related to the acquisition, modification, or extinction of real estate rights (Section 1017).
- ii. Agreements in which the subject matter is dubious or concerning controversial rights over real estate (Section 1017).
- iii. All acts that are accessory to agreements executed through public deed (Section 1017).
- iv. All other contracts that, by agreement between the parties or by legal obligation, must be granted through public deed (Section 1017).
- v. Leasing agreements regarding real estate, vessels or aircrafts (Section 1234).
- vi. Appointment of legal guardians of minors (Section 106 of the Code).
- vii. Marital agreements (Section 448 of the Code).
- viii. Donations of real estate or registered goods or donations containing periodic benefits or annuities (Section 1552).
- ix. Onerous annuity agreements (Section 1601).
- x. Assignment of inheritance rights (Section 1618).
- xi. Assignment of controversial rights (Section 1618).
- xii. Assignment of rights derived from an act executed through a public deed (Section 1618).
- xiii. Report of theft, loss, or destruction of privately offered securities (Section 1855).
- xiv. The horizontal property regulation (Section 2038).
- xv. Mortgages (Section 2208).
- xvi. Waiver to inheritance (Section 2299).
The referred documents shall be regarded as ineffective if executed with electronic or digital signature.
Does local regulation govern the use of digital IDs / certificates for e-signatures?
Digital IDs are regulated by Decree No. 744/2019.
- By means of Law No. 17,671, the National Registry of Individuals (RENAPER, after its acronym in Spanish) is the national entity with exclusive competence to issue the National ID, both the virtual (Digital ID) and physical card. Obtaining the Digital ID is optional and does not replace the physical card, but complements it.
Validity and Characteristics:
- The Digital ID is an exact replica of the physical card and contains the same personal information, thus allowing identification of the individual unequivocally.
- Further, the Digital ID uses encrypting methods to protect data and digital signature. It also complies with BLE, ICAO 9303 reading data and uses the PDF 417 protocols. (Disposition 4308/2019, as amended by Disposition No. 1154/2020)
- The Digital ID is valid for every circumstance in which an individual might need to prove their identity. The only exceptions in which the Digital ID is not valid and the physical card must be used are: (i) voting and (ii) traveling outside Argentina.
Process and requirements:
- The minimum age to obtain a Digital ID is 14 years old.
- To obtain the Digital ID, the individual must (i) download the app "Mi Argentina" and validate their identity and (ii) complete an in-person process.
- Once the Digital ID is issued, this enables the individual to carry it on their personal device through the app "Mi Argentina" (Disposition 23/2019).
Certificates for Digital Signatures:
Digital signature certificates may be granted by licensed "certification service providers" or through a foreign digital certificate, provided that such foreign digital certificates comply with the requirements set forth by the Law which, in general terms, require compliance with minimum internationally accepted standards.
If yes to the above, does local law provide certification bodies / trust services that users of e-signatures should be aware of?
The Law and Decree 182/2019 created a Licensing Entity (Ente Licenciante) that licenses and inspects the accredited certification service providers.
The Licensing Entity maintains a registry of accredited certification service providers (the Registry).
Accreditation is the procedure by which the accreditation service provider demonstrates to the Licensing Entity that it has the facilities, systems, computer programs and human resources necessary to grant certificates, allowing their registration in the Registry of certification service providers created by the Law.
Accreditation is voluntary.
In case of accredited certification service providers, once accredited they will be incorporated to the Registry, will be able to issue digital signature certificates, and will be under the supervision of the Licensing Entity.
*DISCLAIMER: The information contained in this guide is for information purposes only, provided as is as of the date of publication and should not be relied upon as legal advice or to determine how the law applies to your business or organization. It is recommended that you seek guidance from your legal counsel with regard to law applying specifically to your business or organization and how to ensure compliance. OneSpan does not accept liability for the contents of these materials or for third parties materials.
Last updated: November 2021