This note provides a brief and high level overview of the position on electronic signatures in Jersey and Guernsey. The subject has been of particular interest recently, since businesses inside and outside of the Channel Islands began adopting working from home procedures in response to COVID-19 social distancing protocols.

The primary relevant legislation in Jersey is the Electronic Communications (Jersey) Law 2000, as helpfully amended in October 2019 by the Electronic Communications (Amendment of Law) (Jersey) Regulations 2019. Guernsey's primary legislation is the Electronic Transactions (Guernsey) Law, 2000 (as amended).

Fundamentally, it is clear as a matter of the laws of both Jersey and Guernsey that contracts may be formed by electronic means. There is no legal distinction drawn between exchanges of emails, application of signatures using specialist apps, copying snipping or scanning and pasting of pdf signatures into pdf docs, typing in of names in BOLD CAPITALS in lieu of signatures and so forth.

Each of these methods may be valid, binding and enforceable provided that the communications between the parties and the intention to create a formal contract are clear, and the parties have not otherwise agreed between them that contracting by electronic means will not be sufficient. That said, our view is that best practice would involve signatories each applying their own e-signature using a specialist e-signing application.

In Jersey, where a person is required by an enactment to provide a signature (for example on a new memorandum of association, upon formation of a new Jersey company), they will meet that requirement in relation to an electronic communication if a method is used to identify the person and to indicate the person's approval of the information communicated. In addition, in the case of a signature that is required to be provided to a States entity or to a person acting on behalf of a States entity, the requirement will be met only if the entity consents, and any information technology requirements specified by the entity are met. In the current climate, we understand that States departments are taking a pragmatic view.

In Guernsey, the position is simpler - if a law (whether statutory or customary) requires a signature, a signature in electronic form is deemed to satisfy the law. A signature in electronic form can be wholly or partly in electronic form, and must be attached to or logically associated with information in either form.

More generally, the following points may be relevant and worth considering before entering into contracts electronically:

  • Ensure that there are no provisions within the Memorandum and Articles of Association/Incorporation of the relevant company which intentionally or inadvertently require wet ink signatures, or which otherwise restrict the ability of the company to enter into contracts by electronic means or to e-sign documentation generally (including any resolutions in writing).
  • Check any quorum and other procedural requirements for telephone meetings, circulation of written resolutions, appointment of (Jersey/ Guernsey resident) alternate directors, or other means adopted to deal with Covid-19, to ensure that any changes to "normal" procedures work, and do not give rise to any unintended legal consequences.
  • Consider expressly authorising the authorised signatories to enter into contracts and/or to e-sign documentation including any resolutions in writing by any electronic means, and (in Jersey) consider also adding a provision allowing signatories and/or the company to appoint attorneys by power of attorney to execute documentation (in case wet signatures are required for any reason).
  • Where a signature must be witnessed, electronic signatures can still be used. The witness should be physically present at the time of the signatory e-signing the relevant document, and should add their own e-signature using the same system. In certain circumstances, alternative arrangements may be possible.
  • There are a small number of legal documents where electronic signatures will not be valid. Wills, contracts relating to land in Jersey or Guernsey, and certain powers of attorney (particularly in Guernsey) will, it seems, still require "wet-ink" signatures, because of the paperbased registry systems. Again, in certain circumstances, alternative arrangements may be possible.
  • For documents governed by the laws outside the Channel Islands, it will be necessary to check with legal counsel in the jurisdiction whose laws govern the document to ensure that the use of electronic signatures is permissible in that jurisdiction.

We understand that additional changes to relevant legislation are under consideration and expected in due course, and that these will help to clarify matters further.

Originally published 21 April, 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.