13-11-2023
Electronic signatures are increasingly used, but are they recognized and do they have the same legal value as handwritten signatures?
An update on electronic signatures in Switzerland
In Switzerland, only qualified electronic signatures, offered by accredited providers, are considered equivalent to handwritten signatures. To be valid, legal documents requiring a written form must utilize these providers, under the penalty of being null and void due to a formal defect.
Is the electronic signature valid in Switzerland?
The question of using electronic signatures, offered by various suppliers on the Swiss market, to sign legal documents in Switzerland is frequently raised.
This question is particularly relevant for company directors and representatives as well as the parties to a contract.
The answer is not as simple as you might think. In Switzerland (and throughout the world), there are several types of electronic signatures, which can be used to perform certain actions, while having no legal value in others.
What does the law say?
Under Swiss law (Article 14, para. 2bis of the Swiss Code of Obligations (CO)), only an "authenticated electronic signature", based on an authenticated certificate issued by an officially recognized certification service provider and time-stamped in accordance with the law, is considered to be equivalent to a handwritten (wet ink) signature.
In other words, in the eyes of the law, only an authenticated electronic signature is recognized and can be considered equivalent to a handwritten signature. Currently, the following providers of authenticated electronic signatures are recognized in Switzerland: (i) Swisscom (Suisse) SA, (ii) QuoVadis Trustlink Schweiz AG, (iii) SwissSign AG and (iv) the Federal Office of Information Technology and Telecommunications (FOITT).
Many suppliers on the market offer electronic signatures, but only those officially recognized as authenticated suppliers can claim equivalence with handwritten signatures. Electronic signatures from other sources do not qualify for this special status.
Risk of formal defect?
Does this mean that all documents signed electronically without an authenticated electronic signature have no legal value?
Not necessarily, as the handwritten signature or authenticated electronic signature is only required for legal transactions for which the law requires simple written form, or if the parties have voluntarily agreed to use this form (for example, when the parties decide to apply written form to amendments or additions to a contract).
What the law requires...
Fortunately, under Swiss law, written form is required for only a limited number of transactions. Here are a few examples where written form is required by law and thus necessitates the use of an authenticated handwritten or electronic signature: (i) the conclusion of a leasing contract; (ii) the assignment of receivables; (iii) rental lease notices; (iv) surety bonds; (v) promises to give; (vi) written decisions in company law, etc. In addition, certain operations also require an authenticated handwritten/electronic signature, such as: (i) documents (requisitions, etc.) to be filed with the Commercial Registers; (ii) legalization of signature by a public officer, etc.
What the parties can dispose of...
For contracts not subject to written form, the principle of freedom of form applies, and the parties may agree on the desired form and method of signature. In such cases, other types of electronic (i.e. non-authenticated) signatures may be accepted and used by the contracting parties. To avoid any misunderstanding, it is advisable to expressly include a clause in the contract authorizing this type of electronic signature.
There are therefore different types of electronic signature, and only authenticated electronic signatures (similar to handwritten signatures) must be used when the law requires written form, or when the parties decide to do so voluntarily, failing which the act concluded or completed will be deprived of legal effect due to a formal defect. For other deeds not requiring written form, the various types of electronic signature may be used by the parties.