eSignature Legality in Switzerland

E-Signature Legality Summary

In addition to the EAS, other governing laws surrounding electronic signatures are EAS’ implementing Ordinance on Certification Services in the field of Electronic Signature and other Digital Certificate Applications, as well as the Ordinance of the Federal Office of Communications OFCOM on Certification Services in the field of Electronic Signature and other Digital Certificate Applications.

Further, under Swiss law, the principle of freedom of form applies: Contracts governed by Swiss law only require a special form to be valid when the law expressly prescribes such a form (art. 11 CO). The law only requires contracts to be in writing in certain cases.

Types of Electronic Signature

The EAS provides for several different forms of electronic signatures each having different requirements. The most important are (non-exhaustive list):

• Electronic Signature: Data in electronic form that is attached to or logically linked with other electronic data and used to authenticate them (art. 2 lit. a EAS).

• Advanced Electronic Signature: An electronic signature that:

  1. is exclusively assigned to the holder,

  2. enables the identification of the holder,

  3. is produced by means which the holder can keep under his/her sole control; and

  4. is linked to the data to which it relates in such a way that any subsequent alteration of the data can be detected (art. 2 lit. b EAS).

• Regulated Electronic Signature: An advanced electronic signature created using a secure signature creation device in accordance with the EAS and that is based on a regulated (digital) certificate issued to a natural person and valid at the time of the creation of the electronic signature (art. 2 lit. c EAS).

• Qualified Electronic Signature (QES): A regulated electronic (digital) signature that is based on a qualified (digital) certificate (art. 2 lit. e EAS).

Documents That May be Signed Electronically

The following categories typically do not have specific formal requirements under Swiss law; therefore, any form of electronic signature that meets the definitions above may be used:

• Procurement (but see below)

• NDAs

• Software Licensing

• Insurance (only for policies)

• Healthcare

• Life Sciences

• Technology sector

• Documents to be Recorded.

Further Guidance

While the use of electronic signatures is not prohibited for the following transaction types, caution should be exercised before using electronic signatures for the listed transactions as they may require use of a QES:

• HR

• Procurement (if the document contains a factoring agreement)

• Banking

• Lending

• Insurance (if the document contains a termination declaration of the insured)

• Consumer Transactions; and

• Government Filings.

As Swiss law provides for the principle of technology neutrality, there are no special legal requirements or recognized best practices for the enforceability of an electronic signature. As only Qualified Electronic Signatures (as opposed to simple Electronic Signatures) are deemed equivalent to a handwritten signature, a court will, in principle, hold a Swiss law-governed contract that is subject to a written form requirement and is executed with a Qualified Electronic Signature to be valid under Swiss law so long as no other reasons leading to an invalid/void contract are present.

Further, for the enforceability of certain acts and instruments, it is required that they are executed with Qualified Electronic Signatures, as such documents can be used in support of summary motions for the provisional dismissal of debt enforcement objections, while documents with other forms of electronic signatures cannot.

Case Law

The following two cases are examples of where Swiss courts have addressed the use of electronic signatures:

• Swiss Federal Court, 5A_503/2019, section 3.3, and

• Swiss Federal Court, 8C_256/2015, section 2.4, section 3.3.