JERSEY - Electronic signatures and the use of technology in Jersey
The Electronic Communications (Amendment of Law) (Jersey) Regulations 2019
- The purpose of electronic signatures, Jersey is well placed for Electronic signatures.
- The Electronic Communications (Jersey) Law 2000 (the Communications Law) was amended
- on 9 October 2019 by the Electronic Communications (Amendment of Law) (Jersey) Regulations 2019
- It clarified the provisions around electronic information, electronic signatures, and the making of contracts by electronic means.
- A signature, seal, attestation or notarisation is not to be denied legal effect, validity or enforceability only because it is in electronic form
- So long as the FOLLOWING pre-conditions are carefully considered and confirmed.
- for a legal entity, there are no restrictions on the use of electronic signatures in its constitutional documents (this is particularly relevant when a company had old or outdated constitutionals);
- the law of the place of a company's incorporation (if not Jersey) permits electronic signatures and doesn't otherwise contain restrictions on the type of document that can be signed by way of electronic signature;
- there is nothing in the contractual terms themselves that prohibit electronic signatures; and
- it is applied with the requisite intent and appropriate authority.
The Communications Law also does not cover physical practicalities legally required to execute certain documents from time to time, such as
- a power of attorney granted under the Powers of Attorney (Jersey) Law 1995 granted by individuals which will need to be signed in the presence of a witness in order to be effective.
It is worth considering at an early stage in all transactions how closing will be implemented and whether electronic signatures are possible. For example,
- it may be possible to amend constitutional documents to expressly provide for electronic signatures if they do not do so already or
- a company's board may wish to consider putting in place standing authorities to allow certain directors and employees with authorised signatory status to bind the company electronically.
Some of our critical regulators in Jersey have also shown particular pragmatism at this time. Two examples of this are:
1. The Jersey Financial Services Commission (JFSC):
- They have confirmed that whilst their physical premises are closed, a flexible business continuity strategy is being implemented and that they intend to take as pragmatic an approach as possible when dealing with filings, submission and responding to clients.
- They expect to deal with the majority of filings and submissions online.
2. The International Stock Exchange Authority (TISE):
- They have also confirmed that they intend to provide appropriate flexibility to ensure effective business continuity for the benefit of its members and issuers.
- TISE also has a solid track record when it comes to going digital and has issued statements and guidance to members and issuers to assist them during this period.