Legality of eSignatures in Switzerland
- Background
- What is an electronic
signature - Overview of the
regulations on electronic
signature in Switzerland - Validity requirements for
an advanced electronic
signature - Summary analysis
- Scope and limitations
of electronic signature
transactions - Summary of the
scope and limitations of
electronic signature transactions - How does BoldSign help
Background
Electronic signatures have transformed how documents are verified, streamlining the finalizing agreements in Switzerland and globally. These digital innovations facilitate rapid and environmentally conscious methods for signing documents, curtailing reliance on paper and accelerating the pace of business dealings.
Users must choose a service that complies with the Swiss Code of Obligations and the Federal Act on Electronic Signatures [2016], which recognizes electronic signatures as legally equivalent to handwritten ones. Some documents may require a handwritten signature, and legal requirements may vary regionally.
The importance of security cannot be overstated. The chosen electronic signature provider must offer robust security procedures, including data encryption, authentication protocols, and audit trails, to prevent unauthorized access and ensure the integrity of signed documents. Services like BoldSign are known for incorporating such security features and ensuring adherence to compliance and security standards.
In summary, while electronic signatures offer considerable advantages and are widely recognized, it is imperative to ensure adherence to legal frameworks, prioritize security, and opt for a user-friendly platform when implementing them in the Swiss context.
What is an electronic signature
Under Switzerland’s regulations on electronic signatures, electronic signatures are defined as a collection of electronic data attached to or associated with other electronic data used to authenticate the latter. In Switzerland, electronic signatures are legally binding on most documents as long as they can be unequivocally linked to the individual signing, there is proof to confirm their genuineness, safeguarding against tampering or fraudulent activities. Moreover, it is essential that the act of signing electronically clearly reflects the signatory’s deliberate consent to the conditions outlined in the document. Electronic signatures are granted the same legal standing as wet-ink signatures when these requirements are met.
Overview of the regulations on electronic signature in Switzerland
The use of electronic signatures in completing transactions within Switzerland is regulated by:
- Federal code of obligations
- Federal Act on Certification Services in the Field of Electronic Signature and Other Applications of Digital Certificates1.
- Civil Procedures Code
An electronic signature is accepted to have the same legal standing as a wet-ink signature in Switzerland. Article 14 [2bis] of the Code of Obligations (CO) decrees that only “authenticated electronic signature,” based on an authenticated certificate issued by an officially recognized certification service provider and timestamped under the law, is equivalent to a handwritten (wet ink) signature.
Under the Switzerland Electronic Signatures Act2, signatures are categorised into:
- Simple Electronic Signature
- Advanced Electronic Signature
- Regulated Electronic Signature
- Qualified Electronic Signature
A simple electronic signature under the act is defined as a set of data in electronic form linked to other electronic data that serves to verify its authenticity3.
An advanced electronic signature is,
- Linked only to the holder.
- Capable of identifying the signatories.
- Developed using means that the signatory has sole control.
- Easy to detect any alterations made to the document post-signing.4
A regulated electronic signature is decreed to be an advanced electronic signature created using a secure creation device and based on a regulated certificate issued to an individual valid at the time of signing.5
Lastly, a qualified electronic signature is a regulated signature based on a qualified certificate issued by a licensed certification services provider.6
Validity requirements for an advanced electronic signature
Uniquely linked to the holder
An advanced electronic signature must be uniquely connected to the person who is using it. The signature must be uniquely made with methods that only the signer has access to, like a private key and confidential information, to verify their identity.
Use and incorporation remain in their sole control
The person using the advanced electronic signature must have sole control over the means of creating the signature. Typically, this requires managing a key pair or two-factor authentication, with the signer exclusively holding the private key to prevent unauthorized signature forgery.
Allows the holder/signer to be identified
The process used to create the signature must be capable of identifying the person signing. This may include using a biometric signature, Personal Identification Number (PIN), email address, or company registration number.
Easy to detect any alterations made to the document post signing
It is essential to preserve the authenticity of the signed document. Modifications made to the document post-signature should be identifiable. This is commonly accomplished through an audit trail. Audit trails record the signer’s IP address, timestamps of key signing events, and location, providing proof of identity, timing, and signature place.
Summary analysis
Types of Signature
Section & Statute
Nature
Simple Electronic Signature (SES)
Federal Act on Certification Services in the Field of Electronic Signature and Other Applications of Digital Certificates. Art. 2a, b, c, & e
- No unique feature other than being data in electronic form.
Advanced Electronic Signature (AES)
Federal Act on Certification Services in the Field of Electronic Signature and Other Applications of Digital Certificates. Art. 2a, b, c, & e
- Linked only to the holder.
- Allows the holder to be identified.
- Creation is under the user’s sole control.
- Easy to detect any alterations made to the document post signing.
Qualified Electronic Signature (QES)
- Regulated signature based on a qualified certificate issued by a licenced certification services provider.
Regulated Electronic Signature (RES)
- Created using a secure creation device.
- Based on a regulated certificate.
- Uniquely linked to the holder.
- Allows the holder to be identified.
- Creation is under the user’s sole control.
- Easy to detect any alterations made to the document post signing.
| Types of Signature | Section & Statute | Nature |
|---|---|---|
| Simple Electronic Signature (SES) | Federal Act on Certification Services in the Field of Electronic Signature and Other Applications of Digital Certificates. Art. 2a, b, c, & e |
|
| Advanced Electronic Signature (AES) |
| |
| Qualified Electronic Signature (QES) |
| |
| Regulated Electronic Signature (RES) |
|
Evidentiary value
Under Swiss civil procedure, electronic documents and documents with electronic signatures are considered admissible evidence according to Articles 143 and 177 of the Civil Procedure Code (CPC).
Scope and limitations of electronic signature transactions
Electronic signature use is not legally recognized for all document types. Some transactions are appropriate for electronic signatures, while others are not. Below is a brief analysis and a summary table of these transactions.
Documents that can be signed
Electronic signatures can be employed to affix signatures and countersignatures on a diverse array of documents, such as:
- Legal Opinions
- Offer letters
- Memoranda and Internal correspondences
- Non-Disclosure Agreements
- Purchase orders
- HR
- Procurement
- Employee onboarding
- End User Agreements, etc.
Exempted transactions
The Switzerland Federal Act on Electronic Signature lacks an express provision on what class of transactions will not be completed by electronic signature. It should be noted that legislations in place have provisions requiring certain transactions to be completed in person and hence not qualified for an electronic signature. To that effect, caution should be taken when dealing with,
- Wills [Art 502 Civil Code]
- Applications for facts to be entered or entries modified [Art 556 Civil Code].
- Declarations regarding bills of exchange and blind person signature [Art 1085 Civil Code].
- Signatures by persons authorized to represent the company other than their director [Art 814 Civil Code].
- Notaries and other sensitive documents
- Marriage and inheritance contracts
- Real estate transactions
- Establishment of legal entities, corporations, or foundations (as well as the amendment of their statutes).
- Assignment of claims and bankruptcy.
Summary of the scope and limitations of electronic signature transactions
Transactions that can be completed in Electronic Signature
Exempted transactions.
[Under Federal Civil Code and other laws]
- Legal Opinions
- Offer letters
- Memoranda and Internal correspondences
- Non-Disclosure Agreements
- Purchase orders
- HR
- Procurement
- Employee onboarding
- End User Agreements, Etc.
- Wills
- Applications for facts to be entered or entries modified.
- Declarations in respect of bills of exchange -blind person’s signature.
- Signatures by persons authorised to represent the company other than their director.
- Notaries and other sensitive documents
- Marriage and inheritance contracts
- Real estate transactions
- Establishment of legal entities, corporations, or foundations (as well as the amendment of their statutes).
- Assignment of claims and bankruptcy (insolvency procedures).
| Transactions that can be completed in Electronic Signature | Exempted transactions.[Under Federal Civil Code and other laws] |
|---|---|
|
|
To ensure an electronic signature’s validity while complying with legal requirements, an individual should be able to adopt best practices such as:
- Establishing the legitimacy and authorization of the signatory: This involves implementing stringent procedures to authenticate the identity of individuals signing on behalf of themselves or an entity. For businesses, this step may include verifying the individual’s position within the company and their delegated power to sign documents, ensuring they have the proper authorization to enter into binding agreements on the company’s behalf.
- Obtaining clear and unambiguous consent to the use of electronic signatures: Before utilizing electronic signatures, it is critical to secure informed consent from all parties involved. This means explaining the implications of an electronic signature, how it will be used, and the legal equivalent to a handwritten signature, thereby ensuring that all parties are fully aware and agreeable to the electronic signing process.
- Ensuring the integrity of the signed document post-execution: Once a document has been signed electronically, measures must be taken to safeguard it from unauthorized alterations. This can involve using of digital tools that lock the document’s content and track any attempts at modifications, thereby maintaining the document’s integrity and ensuring it remains legally enforceable.
- Maintaining a detailed log of the electronic signing activity: Keeping a robust and detailed audit trail is essential for validating the signing process. This record should include timestamps, IP addresses, signer authentication methods, and other relevant information that documents the signing event. Such records are crucial for providing evidence of the signing process’s legitimacy and can be invaluable in a legal dispute or audit.
Notable case laws
In Swiss Federal Court, 5A_503/2019, it was held that for a lawyer to file a complaint electronically, the lawyer must use an electronic signature that complies with the set criteria. This requirement extends to international lawyers who prefer to avoid appointing a Swiss representative lawyer. Contrary to what the complainant’s lawyer has argued, the unsuccessful electronic filing of the appeal with the High Court of the Canton of Aargau was not the result of a system error or a technical shortcoming. The failure occurred because the lawyer needed a valid electronic signature that conforms to the standards mandated for legal filings in Swiss courts. Instead, the lawyer used a signature that adheres to the standards set by the German Federal Bar Association, which does not authorize the signing of electronic submissions in Switzerland.
How does BoldSign help
The following elements of compliance available within BoldSign can be used to comply with Switzerland’s electronic signature laws:
- Secure and unique signing link: A secure and unique link to sign a document is sent directly to the signer’s email address. This helps ensure that the document is only accessed by the intended signer and cannot be tampered with.
- Password protection: Senders can specify a password that needs to be entered before viewing and signing a document. This adds a layer of security to the signing process.
- Audit trail: The IP address of the signer and timestamps for all significant events in the signing process are recorded in an audit trail. This provides a record of who signed the document, when, and where.
- Digital signature: The final document is digitally signed with an AATL-compliant certificate. This ensures that the document cannot be tampered with without invalidating the signature.
- Consent: Signers are asked to confirm their intent to sign electronically and informed that they could opt out. This helps ensure that the signer is aware of the implications of signing electronically and has consented to do so.
- Custom terms: Getting your signers to agree to a custom set of terms. This can be useful to ensure additional security or that the signer understands the terms of the document.
Disclaimer: The information on this page is intended to help businesses understand the legal framework of electronic signatures for this particular country.
However, Syncfusion, its officers, directors, stockholders, affiliates, attorneys, accountants, employees, or agents cannot provide legal advice. You should consult your personal attorney regarding your specific legal questions. Laws and regulations change frequently, and this information may not be current or accurate. To the maximum extent permitted by law, Syncfusion provides this material on an “as-is” basis. Syncfusion disclaims and makes no representation or warranty of any kind with respect to this material, express, implied, or statutory, including representations, guarantees, or warranties of merchantability, fitness for a particular purpose, or accuracy.
Syncfusion makes no warranties of any kind, including but not limited to respect to the information or the product, whether express, implied, statutory, or otherwise. To the maximum extent permitted by law, Syncfusion disclaims all conditions, representations, and warranties, whether express, implied, or statutory, with respect to this information without limitation any implied warranty of merchantability, fitness for a particular purpose, accuracy, or currentness of this information.
Syncfusion nor their officers, directors, stockholders, employees, affiliates, attorneys, accountants, or agents shall be liable for indemnification, nor does this create an express or implied, contractual or statutory, equitable or otherwise, under this Agreement. The officers, directors, stockholders, affiliates, attorneys, accountants, or agents will not have any liability in any form.
1 Electronic Signature Act, SCSE [2016] [https://www.wipo.int/wipolex/en/legislation/details/20036]
2 Federal Act on Certification Services in the Field of Electronic Signature and Other Applications of Digital Certificates [Electronic Signature Act, SCSE] [2016] Art 2 a, b, c & e
3 Ibid Art 2 a
4 See footnote 1 Art 2b.
5 Federal Act on Electronic Signature [2016] Art 2 c
6 Ibid Art 2 e
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