Digital Signature Legality in Switzerland

Many people think digital signature legality in Switzerland rejects all forms of digital signature other than qualified electronic signatures (QES). DocuSign is an advanced electronic signature (AES), and so the foregoing, if true, would negate the validity of a contract signed with DocuSign. However, this is simply not the case. While it is true that Switzerland considers the QES signature as the best form of digital signature, and “legally equivalent to a handwritten signature”, thus providing the highest value in civil proceedings, this does not mean other forms of digital signatures are not legally binding. In contract law, being equivalent to a handwritten signature is not necessarily required. In fact, even verbal contracts can be upheld in Switzerland.

So what is the law regarding electronic signatures in Switzerland? In Switzerland, electronic signatures are legally recognised and their use covered in the Swiss Federal Act on Electronic Signatures (“EAS”) and the Swiss Code of Obligations (“CO”).

The Swiss Federal Act on Electronic Signatures (“EAS”) defines four types of electronic signatures, regulates the conditions under which service providers may use certification services with electronic signatures, and provides a framework outlining the provider’s obligations and rights applicable to the provision of certification services.[1]. The EAS distinguishes between these four types of electronic signatures with increasing levels of trustworthiness and evidentiary value:

  1. Simple electronic signature (SES) – data in electronic form, which is attached to, or logically associated with, other data in electronic form and which aims at authenticating such data.
  2. Advanced electronic signature (AES) – a SES that is also:
    1. uniquely linked to its holder;
    2. capable of identifying its holder;
    3. created with means which the holder can use under his or her sole control; and
    4. linked to the associated data in such a way that any subsequent change in the data is detectable.
  3. Regulated electronic signature (RES) – an AES that is created by a secure electronic signature creation device under the FAES and is based on a regulated certificate.
  4. Qualified electronic signature (QES): – a RES that is based on a qualified certificate.

Documents That May be Signed Electronically With Any Type of Digital Signature.

The following categories are some that typically do not have any specific formal requirements under Swiss law; therefore, ANY form of electronic signature that meets the definitions above may be used:

  • Procurement (but see below)
  • NDAs
  • Software Licensing
  • Insurance (only for policies)
  • Healthcare
  • Life Sciences
  • Technology sector
  • Documents to be Recorded.

E-Signature Legality Summary

In addition to the EAS, other governing laws surrounding electronic signatures are EAS implementing Ordinance on Certification Services in the field of Electronic Signature and other Digital Certificate Applications, as well as the Ordinance of the Federal Office of Communications OFCOM on Certification Services in the field of Electronic Signature and other Digital Certificate Applications.

Further, under Swiss law, the principle of freedom of form applies: Contracts governed by Swiss law only require a special form to be valid when the law expressly prescribes such a form (art. 11 CO). The law only requires contracts to be in writing in certain cases.

As Swiss law provides for the principle of technology neutrality, there are no special legal requirements or recognized best practices for the enforceability of an electronic signature. As only Qualified Electronic Signatures (as opposed to simple Electronic Signatures) are deemed equivalent to a handwritten signature, a court will, in principle, hold a Swiss law-governed contract that is subject to a written form requirement and is executed with a Qualified Electronic Signature to be valid under Swiss law so long as no other reasons leading to an invalid/void contract are present.

What does it mean?

In Switzerland, a qualified electronic signature (QES) is legally equivalent to a handwritten signature. As such, the QES is the best option as it does It provide the highest probative value in civil proceedings. But being equivalent to a handwritten signature is not necessarily required. In fact, a contract can be legally valid even if only verbal. So just because Switzerland does not treat all electronic signatures as “legally equivalent to a handwritten signature” does not mean those other types of digital signatures are invalid.

Under Swiss procedural law as governed by the Swiss Civil Procedure Code, Swiss courts are free in their appraisal of the evidence presented to them, and there is no preference by law for certain forms of evidence. Thus, an electronic signature cannot be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in electronic form or that it does not meet the requirements for a QES.[3]

That said, for the enforceability of certain acts and instruments, may be required that they are executed with Qualified Electronic Signatures, as such documents can be used in support of summary motions for the provisional dismissal of debt enforcement objections, while documents with other forms of electronic signatures cannot.[4]

In summary, for the time being, Switzerland will accept all types of electronic signatures, provided they can be read by technology.[5]

Case Law

The following two cases are examples of where Swiss courts have addressed the use of electronic signatures:

  • Swiss Federal Court, 5A_503/2019, section 3.3, and
  • Swiss Federal Court, 8C_256/2015, section 2.4, section 3.3.

 

DISCLAIMER: The information on our site is for general information purposes only and is not intended to serve as legal advice. Laws governing the subject matter may change quickly, so we cannot guarantee that all the information on our site is current or correct. Should you have specific legal questions about any of the information on our site, you should consult with a licensed attorney in your area.

 

 

[1] https://helpx.adobe.com/uk/sign/using/legality-switzerland.html

[2] https://helpx.adobe.com/uk/sign/using/legality-switzerland.html

[3] https://www.fedlex.admin.ch/eli/cc/2010/262/en

[4] https://www.docusign.com/how-it-works/legality/global/switzerland

[5] https://www.innosuisse.ch/inno/en/home/about-us/application-platform/electronic-signatures.html