Use of Electronic Signatures

 Professional related: Adriana Morales , Everardo J. Espino , Horacio M. de Uriarte   |      May 11th, 2020

As a result of the COVID-19 health crisis and social distancing, companies have considered the execution of commercial agreements and other legal documents using electronic signatures.

I. Validity and Recognition in Mexico Mexican law recognizes the use of electronic signatures in agreements. The Federal Civil Code provides that formal requirements in agreements are considered as fulfilled using electronic or optic devices, or any other technological means, if the information may be attributed to the obliged individuals and may subsequently be consulted. Likewise, the Commercial Code ("CC") recognizes legal effects, validity and binding force of acts carried out through Data Messages (as defined below). In respect thereof, the CC provides that:

• "Electronic Signature" is data in electronic form recorded in a Data Message, or enclosed or logically associated thereto by any technology, to identify the individual who created it through such data and acted by his/her own accord or on behalf of a third party (the "Signatory") in relation to a Data Message, producing the same legal effects as an ink signature, being admissible as evidence in court.

• “Data Message” is the information generated, sent, received, or filed by electronic, optical or any other technology (a commercial agreement signed using an electronic signature is considered a Data Message).

• No legal effects, validity or binding force shall be denied to information for the sole reason of being contained in a Data Message.

Therefore, a Data Message may be used as evidence in any proceeding filed before a legally recognized authority and shall have the same legal effects as a printed document, provided such Data Message complies with the provisions of the CC and the applicable regulatory guidelines. II. Types of Electronic Signatures The CC identifies three types of electronic signatures:

a) Electronic Signature (Simple): This is electronic data contained in a Data Message or enclosed with or logically associated to a Data Message by means of any technology used to identify the Signatory in connection with such Data Message and to indicate that such Signatory approves the information contained there in.

b) Advanced or Reliable Electronic Signature (“AES”): For an AES to be valid and considered as “Advanced” or “Reliable”, in principle, the four requirements provided in Article 97 of the CC must be satisfied:

• Unique data, such as codes or private cryptographic keys that are secretly created (the “Signature Creation Data”), in the context in which they are used, correspond exclusively to the Signatory; • The Signature Creation Data was, at the time of signing, under the exclusive control of the Signatory;

• Possibility to detect any change to the Electronic Signature made after its moment of creation; and

• Possibility to detect any alteration of the Data Message after its time of signing. It should be mentioned that even of the provisions of Article 97 of the CC are satisfied, a third party may challenge the reliability of an AES or provide evidence that an AES is unreliable. Certified Electronic Signature (“CES”): This is a type of AES that has been certified by a recognized service provider (“RSP”). RSPs are individuals or public institutions that provide services related to electronic signatures, issue the corresponding certificates and are duly authorized as such by Mexico’s Ministry of Economy. 

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