eSignature Legality in Brunei (Negara Brunei Darussalam)

eSignature Legality Summary

Under Brunei Darussalam 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. The Electronic Transactions Act (Cap. 196) (ETA) specifically confirms that contracts 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 solution can provide electronic records that are admissible in evidence under Sections 35A and 62 of the Evidence Act (Cap 108), to support the existence, authenticity and valid acceptance of a contract.

Use Cases for Standard Electronic Signature (SES)

Use cases where an SES is typically appropriate include:

• HR documents, such as employment contracts, benefits paperwork and other new employee onboarding processes

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

• consumer agreements

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 or witness - the creation of any legal instrument or document under any written law relating to Islamic law (excluded by ETA)

• Handwritten or witness - the creation or execution of a will under any written law relating wills (excluded by ETA)

• Handwritten or witness - negotiable instruments (excluded by ETA)

• Handwritten or witness – indenture (excluded by ETA)

• Handwritten or witness - declaration of trust (except constructive and resulting trusts) (excluded by ETA)

• Handwritten or witness - power of attorney (excluded by ETA)

• Handwritten or witness - any contract for the sale or other disposition of immovable property, or any interest in such property (excluded by ETA)

• Handwritten or witness - the conveyance of immovable property or the transfer of any interest in such property (excluded by ETA)

• Handwritten or witness - documents of title relating to immovable property (excluded by ETA)

[1] Secure Electronic Signature - An electronic signature will be treated as a “secure electronic signature” if, through the application of a prescribed security procedure or a commercially reasonable security procedure agreed to by the parties involved, it can be verified that the electronic signature was, at the time it was made: (a) unique to the person using it; (b) capable of identifying such person; (c) created in a manner or using a means under the sole control of the person using it; and (d) linked to the electronic record to which it relates in a manner such that if the record was changed the electronic signature would be invalidated.

[2] Secure Digital Signature - the digital signature was created during the operational period of a valid certificate and is verified by reference to the public key listed in such certificate; and the certificate is considered trustworthy, in that it is an accurate binding of a public key to a person’s identity.

Local Technology Standards

As part of its tiered approach to electronic signature, Brunei recognizes the concept of a ‘Secure Electronic Signature’, which incorporates digital signature technology, and whose providers must be certified by the government of Brunei. While not required by law for any transactions, use of a Secure Electronic Signature has the added benefit of being presumed authentic, requiring any challenge of the signature to provide evidence that it is invalid.