eSignature Legality in Ukraine

eSignature Legality Summary

Under Ukrainian law, a written signature is not necessarily required for a valid contract - contracts are generally valid if legally competent parties reach an agreement, whether they agree verbally, electronically or in a physical paper document (Article 207 of the Civil Code of Ukraine). Article 8 of the Law of Ukraine No. 851-IV, “On Electronic Documents and Electronic Documents Circulation,” specifically confirms that documents cannot be denied enforceability merely because they are concluded electronically. To prove a valid contract, parties sometimes have to present evidence in court. Leading digital transaction management solutions can provide electronic records that are admissible in evidence where (a) directly prescribed by law, or (b) the parties agreed to the use of electronic signatures to support the existence, authenticity and valid acceptance of a signed document. QES is generally accepted to have the same legal force as a handwritten signature.

Use Cases for Standard Electronic Signature (SES)

Use cases where an SES is typically appropriate include:

• commercial agreements between corporate entities, including NDAs, procurement documents, sales agreements

• consumer agreements, including new retail account opening documents

NOTE:  in such cases where there is no explicit provision of the law that would allow using electronic signatures in a particular case, electronic signatures are not appropriate if the parties have not agreed in advance, with handwritten signatures, to the use of electronic signatures.

Use Cases for Other Types of Electronic Signature (e.g. Digital Signature, AES

Use cases where an electronic signature other than SES may be required include:

• QES - acts by public authorities, municipal bodies, state enterprises, institutions and organizations (Article 17 of the Law on Electronic Trust Services)QES - privately owned legal entities and individuals in cases of filing electronic documents or reporting in electronic form to state authorities (Article 17 of the Law on Electronic Trust Services, Order on Exchange of Electronic Documents with Controlling Authorities dated 06 June 2017; Order on Approval of Rules on the Submission of Electronic Reporting to State Statistics Authorities dated 12 January 2011, etc.)

• QES - entities which introduce or maintain internal electronic document management (Order of the Ministry of Justice of Ukraine “On the Approval of the Rules on Management of the Electronic Documents in the Recordkeeping and Preparation for Their Transfer to Archives” dated 11 November 2014 No. 1886/5)

• QES – promissory notes (Art. 5, Law of Ukraine “On Circulation of Promissory Notes)

• QES – transaction documentation, including invoices and acts of acceptance of services

• QES - notarized documents (Article 17 of the Law on Electronic Trust Services)

Use Cases That Are Not Typically Appropriate for Electronic Signatures or Digital Transaction Management

Use cases that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (e.g. wet ink) signatures or formal notarial process that are not usually compatible with electronic signatures or digital transaction management.​

• Handwritten - certificate of inheritance

• Handwritten - a document that according to the applicable law can be executed only in one single original (except for the existence of centralized storage of electronic original documents) or in other cases prescribed by law

[1] AES is defined as an electronic signature created as a result of the cryptographic conversion of the electronic data to which this electronic signature relates, using the advanced electronic signature means and the personal key uniquely associated with the signatory, and which enables the electronic identification of the signatory and to detect a violation of the integrity of the electronic data associated with this electronic signature.

[2] A QES is an AES that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures.