Remote Execution: e-signatures in Ireland

Getting started

There are a number of global e-signature providers operating in Ireland. In choosing one, relevant considerations will include cost, convenience, data security, compatibility with existing systems, the location of physical servers and the adequacy of recovery planning.

Is it possible to e-sign contracts?

Under Irish law, the signing of simple contracts using e-signatures should not be problematic. Such contracts can be executed using a standard electronic signature.

What about e-signing deeds?

The considerations which relate to the use of e-signatures to execute deeds under Irish law are rather different and more stringent conditions apply.

It is not advisable to countersign by electronic means the physical affixation of the corporate seal given that it could be argued that a counterpart has been countersigned as opposed to the original where the corporate seal has been affixed.

Subject to certain prerequisites being met, an e-signature can be used to execute a document (including a deed) under seal.

From a corporate governance perspective, it will be necessary to check the requirements set out in the constitutional documents of the company in respect of execution of documents under seal. Depending on such requirements, a power of attorney may need to be approved by the board of directors to allow for a specific signatory to execute the deed.

Additionally, this is subject to both the signatory and the witness using a Qualified Electronic Signature (QES). A QES is backed by a qualified certificate issued by a qualified trust service provider which attests to the authenticity of the electronic signature to serve as proof of the signatory’s identity.

A witness may still attest the e-signing of a deed but they would need to be in the same room as the signatory. If the attestation is invalid, then the deed will not have been validly executed and will not constitute a valid deed.

Can board minutes and board resolutions be e-signed?

Yes. The e-signing of board minutes and board resolutions should not be problematic.

What about notices?

Yes. Again, the e-signing of notices should not be problematic but bear in mind how delivery is proved.

When is e-signing not acceptable?

There are cases where e-signing may not be acceptable (for either contracts or deeds), including:

• wills, codicils, trust documents and enduring powers of attorney;
• documents governing the manner in which an interest in real property (including a leasehold interest in such property) may be created, acquired, disposed of or registered;
• statutory/sworn declarations and affidavits;
• documents pertaining to the rules, practices or procedures of a court or tribunal;
• where it is necessary to establish the precise physical location where a document has been signed (such as where there are legal reasons why a document should be physically signed outside of Ireland);
• where a document requires notarisation since a notary will generally require a ‘wet ink’ signature and for the document to be signed in the presence of the notary; and
• where the laws of another relevant jurisdiction restrict or prevent it, as discussed below.

The international dimension

Whilst solutions exist for Irish law, the use of e-signatures may present challenges for entities incorporated in, and contracts governed by, the laws of other jurisdictions. We have carried out numerous cross-border regulatory surveys on this topic (involving over 40 countries) and so are familiar with the rules involved.

Tax Residency

If the signatory of an Irish tax resident company is not going to be in Ireland when e-signing board minutes, board resolutions or any contractual documentation, it is advisable to consider the tax rules and the potential effects on the place of central management and control.

Practical tips

There may be documents which do not need to be deeds but which can instead be signed as contracts (i.e. where the consideration can be readily identifiable).

Expand the list of those who have power to bind (including attorneys) and ensure that two of them are physically present at any offsite office – one to execute and the other to witness.

It is best practice for a witness who attests a signature to be independent of the signatory.