If you are currently running an online business in Argentina or planning to sign a contract with an Argentine party online, or even if you have a Blockchain certification that proves the ownership of an IP right (i.e., copyright) that you need to enforce in Argentina, it is very important to be aware of the differences between the electronic signatures recognised in this country and their legal effects.
This aspect is also relevant if you seek to be exempted from the taxes that Argentina’s system provides if you register a contract that involves a patent, trade mark or know how licence agreement before the Argentine Patent and Trade Mark Office (for further information about this tax benefit, please read our article “How to obtain tax benefits when licensing IPRs in Argentina”).
Nowadays, e-commerce has become a usual form of transaction in the world, and its importance has critically increased in these hard times, in which national authorities need to implement social distancing measures due to the Covid-19 pandemic situation.
In this context, businesses have been mostly choosing electronic means for cross-border contractual arrangements.
Under the Argentine legal framework, the parties are free to establish the form of contracts, unless a specified form is required by law.
From a legal perspective, adding somebody’s signature in a contract implies that they have accepted to be bound by the terms or content of the same.
Argentina recognises three types of valid signatures, namely, i) handwritten, ii) digital and iii) electronic signature.
However, not all of these signatures have the same effectiveness in legal proceedings when proving the authenticity of the person who signed the contract and the content therein.
In principle, including handwritten signatures in a document is considered sufficient to oblige the signatory as regards the content of the document, as long as the authenticity of the signature is not questioned.
Another aspect that must be taken into consideration when concluding an online contract is to choose an electronic means that will allow the parties to prove the content therein. In this regard, it must be highlighted that electronic documents are very susceptible and can be easily altered if there are no security measures that can maintain the integrity of the same.
For this purpose, in terms of e-commerce (or when contracts need to be signed remotely), it is essential to choose the most effective electronic means that can ensure a reasonable level of security in order to prove the authenticity and integrity of the document in judicial proceedings.
To obtain a valid digital signature in Argentina, the applicant will have to authenticate their signature before one of the certifying bodies authorised by the Government.
Once the signature has been recognised, the certifying body will issue a certificate that proves the authenticity of the signature, which will be in force for a specific timeframe.
This type of signature is considered to have the equivalent legal effect of a handwritten signature and enjoys a presumption of validity and integrity of the content of the document. In other words, if a third party questioned the authenticity of the document, it shall have the burden to prove so.
Regarding the electronic signature, the Argentine law considers that all electronic data along with other electronic elements that the signatory uses to be identified must be included in this category.
However, this category is divided into two subcategories, namely, i) simple electronic signatures and ii) advanced electronic signatures.
Some examples that can be included in the first subcategory of signatures are a name at the bottom of an e-mail, or the “I ACCEPT” box on a website.
Moreover, those that have implemented a high level of encryption techniques to ensure the authenticity, traceability, and integrity of the signed document are included in the second subcategory of electronic signatures. An example of these is Blockchain.
Contrary to digital signatures, documents that include electronic signatures do not enjoy a presumption of validity. Therefore, the signatory will have the burden of proving the authenticity of the document if it is challenged.
If you need to authenticate key contracts that will be executed online in Argentina, e.g., a distribution agreement, it is advisable to require the local party executing the contract with a digital signature, so as to have a solid foundation to prove the authenticity and integrity of the document. Otherwise, if an electronic signature is used, and you are forced to initiate judicial proceedings due to breach of contract, and the other party does not recognise the signature, you will have to not only prove the breach of the contract, but also the authenticity of the document.