eSignature Legality in Peru

E-Signature Legality Summary

Peruvian Law establishes rules surrounding the use of electronic records and signatures. By general rule, Peruvian Law establishes that any contract entered into by virtue of a manual, written, electronic and/or digital signature will be enforceable before the courts, as long as it can be proven that the parties expressed their willingness to execute the same and that the law does not provide any additional formality for its celebration.

Types of Electronic Signature

Peruvian Law defines three categories of electronic signatures:

• Electronic Signature: Any symbol based on electronic means used or adopted by a party, with the precise intention of bonding or authenticating a document, fulfilling all or some of the characteristic functions of a handwritten signature.

• Digital Signature: An Electronic Signature that uses an asymmetric cryptography technique, based on the use of a unique password pair that associates a private password and a public password, mathematically related to each other, in such a way that people who know the public password cannot obtain the private password from it.

• Digital Signatures Generated within the Official Electronic Signature Infrastructure (“DSOESI”): Digital signature generated using a digital certificate supplied by a provider accredited as such by the National Institute for the Defense of Competition and the Protection of Intellectual Property (“INDECOPI”) to generate a digital signature via an electronic signature platform. Under Peruvian Law, a digital certificate is an electronic document generated and digitally signed by a certification entity or authority, which bonds a pair of passwords with a specific person, confirming the identity of such person. Due to the additional regulatory requirements associated with DSOESI, this enhanced electronic (digital) signature is recognized as having the same validity and legal effectiveness as a handwritten signature, and also has a legal presumption attached to it that reduces the possibility of a signer repudiating the electronic signature.

Documents That May be Signed Electronically

The following categories can be signed with any electronic signature:

• Procurement

• Corporate Resolutions

• NDAs

• Healthcare

• Banking

• Lending

• Education

• Life Sciences

• Technology sector

• Documents to be Recorded

• Consumer Transactions.

Further Guidance

The following may be executed by any electronic means without affecting their validity. However, caution should be exercised:

• Agreements to be Registered before a Specific Public Registry to be Enforceable Against Third Parties

• Documents required to be Notarized

• Human Resources Documents.

Under Peruvian law, DSOESI signatures have an established legal presumption that reduces the possibility of repudiating or ignoring this special type of electronic signature.

However, if a non-DSOESI signature is used and the validity is challenged, the person seeking to rely on the signature may need to produce further evidence demonstrating its validity. This may include evidence of (i) signer authentication, (ii) signer consent, including consent to use the specific type of electronic signature at issue, (iii) no tampering after application of the signature; and (iv) an audit log that captures all signer actions.