The introduction globally of travel restrictions and containment measures arising from Covid-19 has significantly disrupted business, including creating logistical issues in closing corporate or financing transactions or holding board and shareholders’ meetings. This article looks at the flexible and enabling legislation in Bermuda, the British Virgin Islands (BVI) and the Cayman Islands, which provides the tools for addressing these issues.
With an unprecedented number of people working remotely, parties are exploring different methods to execute contracts and sign board resolutions in a legal and binding manner. Some of these methods are not new — for instance, scanning (or faxing) copies of “wet ink” handwritten signatures and attaching these to a document — and are acceptable under Bermuda, BVI and Cayman law, but even these methods are of little assistance without access to a printer or a scanner; hence the increasing use of electronic signatures by using encrypted e-signature platforms such as DocuSign or Adobe Sign.
The primary meaning of “signature” is the writing of a person’s name on a document in ink with the intention of demonstrating that person’s agreement to the contents. So, does an electronic signature bind the signatory to the terms of the document in the same way that a “wet ink” signature on a document would? In Bermuda, BVI and Cayman, the answer is yes.
All three jurisdictions have enacted electronic transactions legislation that provides a framework for the use of electronic signatures and generally gives electronic signatures the same status as “wet ink” signatures. The legislation permits the use of electronic signatures except in relation to:
A common theme across the jurisdictions is the reliability test that must be met for an electronic signature to be valid. The Bermuda Electronic Transactions Act 1999 provides that (a) there must be a method to identify a signatory and to indicate that the signatory intended to sign or otherwise adopt the information in the electronic record; and (b) that method is as reliable as is appropriate for the purpose for which the electronic record was generated or communicated, in the light of all the circumstances, including any relevant agreement. This is echoed in the BVI Electronic Transactions Act, 2001 and the Cayman Electronic Transactions Law, 2003, which set out what is “reliable” for this purpose.
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Electronic signatures and virtual meetings — the Bermuda, British Virgin Islands and Cayman Islands legal framework
This article was originally published in the Offshore Update column in the Asian-Mena Counsel magazine Volume 17 Issue 8.