eSignature Legality in Ecuador

eSignature Legality Summary

Under Ecuadorian 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 Law on Electronic Commerce, Electronic Signatures and Data Messages and the General Regulation to the Law on Electronic Commerce, Electronic Signatures and Data Messages (collectively, the "E-Signature Law") specifically confirm 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 solutions can provide electronic records that are admissible in evidence (assuming compliance with Sections 10, 16 and 17 of the General Regulation to the Law on Electronic Commerce, Electronic Signatures and Data Messages) to support the existence, authenticity and valid acceptance of a contract.

Notable Changes in E-Signature Law Since 2020

1. Art. 36 of the E-Signature Law was introduced on 27 August 2021 and broadened the scope of the authority of the Foreign Trade Committee (COMEX) to verify and use electronic signatures for the promotion of investments and foreign trade. The Article is intended to ensure that electronic signatures are not used as a tool for the generation of illicit trade and the propagation of transnational organized crime. 

2. Art. 63 of the E-Signature Law was introduced on 31 January 2023 in a law entitled The Organic Law For Digital And Audiovisual Transformation, and requires the Ministry of Telecommunications to provide software within 120 days of enactment for use by public authorities in administrative proceedings. The software must enable the authority to verify the veracity of the electronic signature stamped on an electronic document submitted for the authority's consideration. The Article establishes standards for such software and requires the telecommunications regulatory agency to base the determination of the appropriate software on the application of the principle of functional neutrality of technology and international standards and good practices. 

Types of Permitted Electronic Signature

A "qualified electronic signature" (QES) is the only type of electronic signature that is recognized in Ecuador. A QES is a specific digital signature implementation that has met the particular specifications of a government, including using a secure signature creation device, and been certified as "qualified" by either that government or a party contracted by that government.

Documents That May be Signed Electronically

The following transaction types are generally eligible for the use of electronic signatures; however, the electronic signature must be in the form of a QES:

• Commercial agreements between corporate entities including NDAs, sales agreements, and service agreements.

• Consumer agreements including new retail account opening documents.

• Employee confidentiality and invention agreements

• Insurance policy

• Certificates issued by public entities.

• Software license contracts

• Tax Documents (Invoices, Withholding receipts, among others)

Documents That May Not be Signed Electronically 

The following transaction types are some of those that are specifically barred from digital or electronic processes or include explicit requirements, such as handwritten (e.g., wet ink) signatures or formal notarial process, that are not usually compatible with the use of electronic signatures:

• Acts and agreements of transfer of real estate property under any title

• Promise of sale of real estate property and assignment of rights agreements

• Constitution of mortgages and loan mortgage agreements

• Constitution of the right of use and the right of habitation

• Liquidation or dissolution of the conjugal partnership

• Partition and adjudication of real estate

• Establishment of agricultural lien

• Company incorporation agreements (In case of a public deed before a Notary Public)

• Consortiums, strategic alliances and partnership incorporation agreements. (In case of a public deed before a Notary Public)

• Capital increases or decreases, mergers, and spin-offs. (In case of a public deed before a Notary Public)

• Reactivation of companies. (In case of a public deed before a Notary Public)

• Dissolution and liquidation of companies. (In case of a public deed before a Notary Public)

• Bylaws amendment, extension of term, change of address, opening of branch, exclusion of partner. (In case of a public deed before a Notary Public)

• Contracts for the provision of services for the exploration of hydrocarbons or other related contracts

• Fiduciary restitution

• Usufruct related issues

• Partition of hereditary property

• Inventories write off.

• Establishment of a commercial trust

• Concession of mines and frequencies of radio and television

• Trust related transfers

• Cancellation of mortgages

• Waiver by the usufructuary or termination of the usufruct

• Trust related issues

• The establishment of servitude

• Wills

• Affidavits

• Power of attorney

• Declaration of horizontal property regime

• The transfers of shares of a limited liability company (Law on Companies)

• Any other document that is granted by means of a deed (Notary Law)

• Legalization of the signatures on documents which are not deeds (Notary Law)

• The divorce by mutual consent only in cases where the spouses have no minor children or under their authority (Notary Law)

• Liquidation of company assets (Notary Law)

Further Guidance

Local law recognizes locally accredited QES as enforceable; however other signatures may be enforceable, pending compliance with laws of evidence set out in Sections 10 of the General Regulation to the Law on Electronic Commerce, Electronic Signatures and Data Messages, listed below.

• Certification Practices based on or compatible with international standards;

• Software, computer equipment and communications, physical elements and other components suitable to the use of electronic signatures with security conforming to international standards; and

• Management system in compliance with international standards, as well as confidentiality, transparency and non-discrimination in the provision of services.

Section 16 of the General Regulation to the Law on Electronic Commerce, Electronic Signatures and Data Messages, requires that the electronic signature certificates issued abroad must obtain revalidation by a Certification Agency legally accredited by the local authority, which shall verify the reliability of the certificates and its issuer.

Section 17 of the General Regulation to the Law on Electronic Commerce, Electronic Signatures and Data Messages, states that Certification Agencies that have obtained authorization to operate in Ecuador, directly or through third parties, but are not accredited by the Local Authority, will have the category of “non-accredited information-certifying agencies,” and they must inform this condition to their clients. They also must prove at the request of competent authority, the technical sufficiency and reliability of the certificates issued by them.

Enforcement Penalties for Non-Compliance

Electronic signatures that do not comply with the requirements established in the E-Signature Law will not be valid. Non-compliance with the requirements will result in the electronic signature having a validity defect, so that its enforcement will be compromised.

Seminal Case Law

• Case Number 405-2007: CORTE SUPREMA DE JUSTICIA TERCERA SALA PENAL (in Spanish)

Publicly Accessible Hyperlink(s) to Laws/Regulations Discussed Above 

• The Law on Electronic Commerce, Electronic Signatures and Data Messages (in Spanish)

• The Organic Law For Digital And Audiovisual Transformation (in Spanish)