Electronic Signatures in Law

<p>This fourth edition of the well-established practitioner text sets out what constitutes an electronic signature, the form an electronic signature can take, and discusses the issues relating to evidence – illustrated by analysis of relevant case law and legislation from a wide range of common law and civil law jurisdictions. <br> Stephen Mason is a leading authority on electronic signatures and electronic evidence, having advised global corporations and governments on these topics. He is also the editor of <i>Electronic Evidence</i> and <i>International Electronic Evidence</i>, and he founded the international open-source journal <i>Digital Evidence and Electronic Signature Law Review</i> in 2004.<br><br> This book is also available online at <a href="http://ials.sas.ac.uk/digital/humanities-digital-library/observing-law-ials-open-book-service-law">http://ials.sas.ac.uk/digital/humanities-digital-library/observing-law-ials-open-book-service-law</a>.</p>

One of the frequently assumed major differences between civil law and common law systems is the standard of persuasion applied by each in civil (non-criminal) cases. In most civil law jurisdictions, it is commonly assumed that the standard of persuasion is the same for criminal and civil proceedings. The plaintiff in a civil case, as well as the prosecutor in a criminal case, must provide sufficient proof to convince the trier of fact of the truth of the facts at issue on the particular occasion. Although it is recognised that absolute certainty is impossible to achieve, the required degree of belief is often expressed in terms of a virtual certainty, or at least a very high probability. However, a mere statistical probability, no matter how high, will not suffice in the absence of the required conviction or belief in the truth of the facts at issue. In common law jurisdictions, there is an explicit distinction between the standard of persuasion in criminal and civil proceedings. In criminal proceedings, the standard is very high: the prosecutor must prove the defendant’s guilt ‘beyond a reasonable doubt’. In civil proceedings, however, the plaintiff generally only needs to prove his case by the much lower standard of a ‘preponderance of the evidence’ (the usual formulation in the United States) or a ‘balance of probability’ (the usual formulation in the British Commonwealth and Scandinavia). Both standards are often interpreted by academics, and sometimes by judges, as merely requiring a 50 per cent probability. For both standards, as so interpreted, it would be better to employ the term ‘standard of proof’ rather than ‘standard of persuasion’, since the latter implies an element of conviction or belief that is lacking when all that is involved is a class-based statistical probability. I have argued that the supposed major differences between the standards of persuasion in common law and civil law jurisdictions are greatly overstated. I retrace that argument in section II of this paper. I conclude that, in general, the common law as well as the civil law continues to view the applicable standards of persuasion in civil as well as criminal actions as requiring the formation of a belief in the truth of the facts at issue in the particular case, rather than a mere class-based statistical probability, and that concrete ‘particularistic evidence’ specific to the particular case is necessary to support such a belief. Although the available evidence is slim, I also conclude that in the civil law as well as the common law the strength of the required belief is lower in civil actions than in criminal actions. In section IV of this paper, I consider various types of problematic causal situations that courts around the world have struggled to deal with in recent decades. Clear recognition of the issues in these cases and their proper resolution has often been hindered by an unanalysed assumption that the standard of persuasion in civil actions is a mere statistical probability standard, which however is not consistently applied, since doing so would generate significant problems and paradoxes. The considerable confusion that now exists could and should be greatly reduced simply by replacing the highly misleading phrases ‘more likely than not’ and ‘balance of probability’, and even the less misleading phrase ‘preponderance of the evidence’, with ‘a minimal belief’.

Problem setting. Due to the rapid impact of information and communication technologies on commodity-money relations, which are in the sphere of civil turnover in Ukraine, the number of contracts concluded in electronic form is significantly increasing. The scope of electronic documents both in contractual civil law relations and in general in the relations of individuals with government agencies, courts and other public law entities has a clear tendency to expand and grow. Thus, in many areas of commodity-money exchange, the interaction of executors and customers (clients) has reached a completely new organizational and legal level and is carried out exclusively online, because the territorial remoteness and implementation of quarantine measures against COVID-19 is not always possible to sign an agreement on paper. These statements determine the relevance of the chosen research topic. The object of the study is the civil legal relationship using a mobile digital signature (Mobile ID). The subject of the research is the advantages and disadvantages of electronic identification with the use of mobile digital signature in civil circulation. The state of research of the problem. Such scientists as M. I. Anokhin, Yu. V. Borodakiy, N. P. Varnovsky, V. M. Glushkov, M. V. Denisova, M. M. Dutov, A.V. Kobets, G.I. Kupriyanova, A. Matvienko, V. A. Onegov, I. A. Semaev, V. A. Shakhverdov, M. N. Tsyvin, V. V. Yashchenko and others. The target of research is to study the features of the legal regulation of electronic digital signature of a person and his legal status with the analysis of issues arising from the use of such a signature in civil turnover, the formulation of proposals for their solution. Article’s main body. The possibility of using mobile digital signatures in the document flow is provided by the relevant regulations. The Law of Ukraine “On Electronic Digital Signature” adopted on May 22, 2003, defines the legal status of an electronic digital signature and regulates the relations that arise when using an electronic digital signature. This Law does not apply to relations arising from the use of other types of electronic signatures, including digitized images of handwritten signatures. At the same time, the provision of Part 3 of Article 207 of the Civil Code of Ukraine on the use of facsimile reproduction of the signature by means of mechanical, electronic or other copying, as well as electronic signature or other analogue of handwritten signature with the written consent of the parties, which must contain samples handwritten signatures. The legislative base on electronic signatures is currently constantly growing, a passport of a citizen of Ukraine in the form of a card with a contactless electronic carrier (and an electronic digital signature) has been introduced into the continuum of indirect electronic reality. The Law of Ukraine "On Electronic Commerce" of September 3, 2015 regulates the legal regulation of the field of electronic commerce in Ukraine, defines the procedure for electronic transactions with the use of information and telecommunications systems. The legal basis for the provision of electronic trust services, including cross-border, the rights and obligations of the subjects of legal relations in the field of electronic trust services are subject to the Law of Ukraine "On electronic trust services" of October 5, 2017. The number of diverse legal material causes some difficulties in the practical application of a mobile digital signature. Differences in national terminology, which are contained in different sources, as well as existing legal gaps determine the relevance of this problem and require appropriate research. Conclusions and prospects for the development. The scientific novelty of the study is a comprehensive consideration of this topic, namely: the pros and cons of using a mobile digital signature, making suggestions for improving existing legislation with concepts and functions related to the use (Mobile ID).

Criminal Liability of Corporations: A Comparative Approach to Corporate Criminal Liability in Common Law and Civil Law Countries

The aim of this paper is to investigate which conceptual place long-term contracts have within the legal system and how the theory on relational contracts fits within a general theory of justice that has an objectification in a doctrine of good faith. We present a definition of commercial long-term contracts and give examples as to understand how, within the wide range of contracts that can fall within this definition, some can have an organisational colour. After this, we examine the good faith doctrine as understood and employed in both common and civil law jurisdictions; the paper provides the analysis of a recent civil law case involving a distributorship agreement and the function of abuse of right. Nevertheless, the focus is mainly on good faith as a generally accepted clause in European jurisdictions, that is paving its way to general acceptance in common law jurisdictions too. Lastly a brief explanation on how law and economics can help us in descriptively understanding the interplay between contract law and trust games is given, so as to have also a normative insight on why granting judges such a discretional power does not only achieve justice and fairness but also efficient outcomes for business players.

This article examines the tortious liability of contractors under the tort of negligence, comparing approaches in common law and civil law jurisdictions. It analyzes the key elements of negligence—duty of care, breach, and resulting damage—focusing on the contractor’s liability for negligent acts and negligent advice on construction projects. The study highlights how common law jurisdictions impose liability based on established legal precedents while civil law systems, exemplified by the French Civil Code, adopt a broader codified approach. The article also explores how contractors may still be held liable beyond contractual limitation periods and how liability can arise even in the absence of a formal duty of care in civil law jurisdictions. Understanding these differences is crucial for contractors and employers operating in multiple legal frameworks.

This paper argues that comparative law is a powerful tool in areas of law that transcend national legal systems. It examines the petroleum regulatory framework in Australia and Norway both of which use the petroleum licencing and concession system. It identifies common functions within the licencing and concession systems, including the legislative framework, award of licence, the property rights the licence confers, and the development of petroleum fields. These similar functions enable comparison between the two jurisdictions which transcends the usual difficulties of comparing common and civil law jurisdictions. It concludes that these common functions of the petroleum licencing concession systems enable the use of comparative methodology to compare regulatory functions in civil and common law jurisdictions to identify solutions to regulatory issues in the Australian petroleum regulatory framework. This article is available in Bond Law Review: http://epublications.bond.edu.au/blr/vol21/iss3/2 42 COMPARATIVE LAW AS AN INSTRUMENT IN TRANSNATIONAL LAW: THE EXAMPLE OF PETROLEUM REGULATION

This book compares and explains the approaches taken by Asian courts when choice of forum clauses in international commercial contracts are challenged in litigation. It examines key common law jurisdictions (Singapore, Hong Kong and Malaysia), civil law jurisdictions (China, Japan, and Indonesia), and hybrid jurisdictions (the Philippines). With Asia’s ascent in cross-border trade and investment, alongside a corresponding increase in cross-border litigation, understanding how Asian courts address choice of forum clauses in international commercial contracts has never been more critical. Employing a comparative law method, the book identifies and explains the relief and remedies used by Asian courts in enforcing choice of forum clauses, analysing how their classification as either contractual or procedural in nature shapes judicial approaches. It further distinguishes choice of forum clauses from arbitration agreements and explores their interaction with other contractual provisions. Party autonomy – as the parties’ freedom to determine the contents of the choice of forum clause and the freedom to control the flow of litigation – is also critically scrutinised. Furthermore, the book investigates the factors courts consider in resolving key choice of forum clause issues (ie, enforceability; specific relief to be granted; existence, validity, interpretation of choice of forum clauses; role of mandatory rules, public policy, and international interests) and explores the prospects for future development of this area of law in Asia. Crucially, the book highlights the unique approaches of Asian courts, while underscoring the differences and similarities among common law, civil law, and hybrid jurisdictions.

The advancement of contemporary society has ushered in an era of technological disruption, leading to a transformation in the understanding of many concepts, including legal principles. Electronic signatures, which serve as a substitute for manual signatures, are a product of contemporary technological advancements. A notary is a public official empowered to create legitimate documents, including the establishment of legal entities and other official acts under laws and regulations. This study aims to investigate the legal implications of notaries using electronic signatures for creating business documents in the context of PT or CV. The method used in this study is a normative juridical approach with a legislative focus and a literature review. The study results show that electronic or digital signatures can be used remotely to prepare GMS minutes signed by shareholders in public PTs. Juridically, using electronic signatures in notary deeds has consequences for the notary's legitimacy, power of proof, and responsibility. Legal harmonization between the UUJN and the ITE Law is necessary, as well as strengthening regulations to ensure that electronic signatures can be applied legally and safely in notarial deeds.

China’s Civil Code provides for a system of punitive damages. In particular, it affirms the content of punitive damages for intellectual property rights. An analysis of the punitive damages regime for intellectual property rights in China aims to introduce to the reader legal elements for the entitlement of punitive damages, methods of quantification as well as existing problems found in the implementation of relevant provisions in China. A comparison is made between the concept of punitive damages under both common law and civil law jurisdictions with the example of the U.S. and Germany, and some recommendations are provided for foreign rights holders and the Chinese legislators regarding the implementation of punitive damages.

The right to a remedy and remedies are of fundamental importance for any society. This paper examines selected issues relating to remedies in comparative criminal law: evolution, definition, types and specifics of the remedies in certain legal systems, in particular accentuating the distinction between the common law and civil law jurisdictions, keeping in mind that even a perfect procedure can not guarantee perfect results.

The right of recourse, or the right of contribution, between third-party security providers for the same debt absent any relevant agreement, is widely recognized in most common law and civil law jurisdictions. So was it in China. However, since the promulgation of the Chinese Civil Code 2020, the right of recourse seems to have been abandoned. Given the great divide between such abandonment and the practices in most other jurisdictions, this article explores the justification for the right of recourse, primarily from both the perspective of fairness and that of efficiency. Fairness concerns, particularly in the sense of distributive justice, are frequently referred to when justifying the right of recourse. But there are some drawbacks in a typical fairness analysis. Not only is the so-called ‘fairness’ often confused with other concerns, but also is such analysis inherently too vague to produce rules. Nevertheless, an efficiency analysis could justify the right of recourse and help develop the most efficient share calculation rule. The justification discussed in this article will benefit the relevant discussions in the property law of almost every jurisdiction and might also contribute to the debate on the relationship between fairness and efficiency.

The present study is a comparative analysis of the international ocean carrier of goods sea peril exoneration (article 4.2.c of the Hague and the Visby Rules) following Australian, English, Canadian, French, Italian, Greek and Chinese laws. The author analyses the main characteristics of the liability defence under the mentioned domestic laws in seeking to determine whether uniformity in the qualification of the exception exists or is possible.

The modern development of the electronic means of communication allows using the electronic form when concluding international commercial contracts. The ambiguous understanding of the electronic form of a contract and the existence of special requirements for the form of international commercial contracts in the law of the countries of Eurasian Economic Union (EAEU) require the legal analysis of the problems associated with the conclusion of these contracts in the electronic form and the development of the appropriate recommendations to the parties to such contracts. The methodological framework for the study was a set of general scientific (dialectical, historical, inductive, deductive, analytical, synthetic) and specific scientific (formal legal, comparative law, legal modeling) methods. The conclusion of international commercial contracts with the participation of merchants from EAEU foreign countries in accordance with the law of these countries requires them to be made in the written form or the electronic form which is equivalent to it, provided with the electronic signature, under the threat of their invalidity. When applying Russian law to such a contract and not complying with the written form of the international commercial contract it is sufficient for the parties to provide written and other evidence of its conclusion in order to deem it to have been concluded. More liberal are the rules of the UN Convention “On the use of electronic communications in international contracts”, when choosing the rules of which the exchange of electronic messages without the need to accompany them with the electronic signatures is sufficient as the law applicable to the contract. The current trend of liberalization of the form of international commercial contracts in terms of its legal regulation necessitates the improvement of the legislation of EAEU foreign countries, which could meet this trend. In this regard, it is necessary for the legislator of EAEU foreign countries to refuse the imperativeness of the provision concerning the written form of an international commercial contract and the consequences associated with its non-compliance. The next step in liberalizing the form of an international commercial contract for EAEU foreign countries could be the accession to the UN Convention “On the use of electronic communications in international contracts” of 2005. Methodology The methodological framework for the study was a set of general scientific (dialectical, historical, inductive, deductive, analytical, synthetic) and specific scientific (formal legal, comparative law, legal modeling) methods.

The law and finance literature posits that courts in common law jurisdictions can apply flexible fiduciary duty standards and are therefore more effective than courts in civil law jurisdictions at protecting minority shareholders. This Article revisits this claim by conducting several empirical studies on cases involving related-party transactions, share buybacks, and the modification of control rights in China. To better analyze the regulatory approaches, this Article identifies four distinct regulatory strategies: substance-oriented rules, process-oriented rules, substance-oriented standards, and process-oriented standards. The findings show that Chinese courts currently utilize the first three approaches. They apply both rules and standards, but the standards are predominantly substance-oriented. In contrast, process-oriented standards, which are more typical in common law jurisdictions, are largely absent in the Chinese context. This Article further argues that process-oriented standards offer important advantages over substance-oriented rules and standards in certain circumstances, as they alleviate the concerns about information disadvantages and institutional incompetence. They are also more flexible than process-oriented rules in protecting minority shareholders. This Article then examines both institutional and conceptual limitations to developing process-oriented standards in China. It argues that institutional constraints do not constitute insurmountable barriers. Chinese courts are already working with open-ended standards in several types of corporate disputes. In addition, courts possess greater authority than some listed corporations and most non-listed corporations. The absence of process-oriented standards is more likely attributable to the conceptual limitations.