eSignature Legality in Argentina

E-Signature Legality Summary

Law 25,506, as amended including by Law 27,446 (together, the “Laws”), governs electronic and digital signatures and documents. Regulatory Decree 182, of 2019 (“Decree 182”), regulates the application of Law 25,506, including the use of the so-called electronic documents, electronic and digital signature (as defined by the Laws) and its legal effectiveness. The Civil and Commercial Code likewise includes provisions that address the validity and effect of electronically signed documents, including Article 286 and Article 288.

The Digital Signature Law is a federal law.  The provinces were invited to adopt the law locally.  As of 2017, the following provinces adopted the Digital SIgnature Law:  Buenos Aires, Chubut, Cordoba, Corrientes, Entre Rios, La Rioja,  Mendoza,  Misiones, Rio Negro, Salta, San Juan, San Luis, Santa Fe, Tierra del Fuego, and Tucuman.

Notable Changes in E-Signature Law Since 2020

None.

Types of Permitted Electronic Signature

Although the Civil and Commercial Code does not provide a detailed definition for the widely used term, “electronic signature”, the Laws do provide two relevant definitions:

An “electronic signature” results from applying a mechanism similar to that described for digital signature (as described below), but which lacks the specific enhanced legal requirements set out per the Laws (Section 5 Civil and Commercial Code). This general electronic signature definition is very broad and, according to doctrine and case-law, it includes any electronic-means signature that does not satisfy the more explicit legal requirements for the digital signature. Further, on a case by case basis, these different types of electronic signature methods — e.g., a hand-drawn, image or system-generated electronic signature — have different levels of initial evidentiary weight should a dispute arise over the legitimacy of that electronic signature. For example, certain system-generated electronic signatures likely would have heighted evidentiary weight based on the additional identity and/or fraud evident functionality offered in such systems versus merely a hand-drawn or image of a signature.

A “digital signature” is an enhanced electronic signature that applies a further mathematical algorithm that requires information known exclusively by the signor and under the signor’s sole control. The mathematical mechanism applied also must allow third parties to be able to verify both the signors’ identity and the integrity of the document after the document has been digitally signed. Further, the signature validity (i.e., “digital”) certificate that is used for a digital signature must have been issued by an authorized certifying agent (Section 2 Civil and Commercial Code).

Documents That May be Signed Electronically

The general consensus is that private parties, who contract with one another, can choose to electronically sign documents either with an electronic or digital signature. In the public sector, the use of electronic signatures is permitted except when otherwise instructed by law or by the parties’ mutual agreement. For example, certain laws may require a specific electronic signing formality incompatible with the general use of electronic documents and/or signature or explicitly require the use of a digital signature.

Further Guidance

The use of electronic or digital signatures is not prohibited for the following transaction types, although caution should be exercised before using electronic signatures for the listed transactions (please note that the following list is not exhaustive):

• HR

• Procurement

• Chattel Paper; and

• Electronic or digital prescriptions (Law 27,553)

Much of a party’s determination as to which type of signature to use is based on balancing the type of document to be executed against regulatory and/or evidentiary requirements and the potential added complexity of using a specific type of signature. If a party uses a general electronic signature and the validity of such signature is challenged, a party typically would need to provide further evidence establishing the validity of the electronic signature. When using a digital signature, such signatures have an initial presumption of validity. In addition, the document into which the digital signature has been incorporated would also have a presumption of trustworthiness and completeness. Therefore in the case of a challenge of a digital signature, the challenging party carries the burden of proving that the digital signature is not enforceable.