eSignature Legality in Kazakhstan

eSignature Legality Summary

Under Kazakhstani 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, albeit most commercial (and all cross-border commercial contracts) must be in written form. A contract executed by way of exchanging electronic documents or electronic messages is deemed to be in written form (Articles 152.2 and 152.1-1of the Civil Code of the Republic of Kazakhstan). The Law of the Republic of Kazakhstan On Electronic Document and Electronic Digital Signature (E-Signature Law) and the Code of Civil Procedures of the Republic of Kazakhstan specifically confirm that electronic documents authenticated by “electronic digital signatures” compliant with the E-Signature Law, which are similar to a QES[1], are equal to handwritten documents. Accordingly, such contracts cannot be denied enforceability merely because they are concluded electronically, by electronic digital signature. 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, under Kazakhstan law, to support the existence, authenticity and valid acceptance of a contract. Further, the Kazakhstani Civil Code (Article 152.3) expressly permits parties to conclude agreements using various means of communications, such as telegrams, faxes, electronic documents, electronic messages or other documents which can identify parties to the transaction and their respective intents. The Civil Code does not expressly require the electronic signature in this context to be an "electronic digital signature" compliant with the E-Signature Law (ie., a QES). Thus, any form of electronic signature satisfying these Civil Code requirements, should be enforceable as a handwritten signature. But this will ultimately be left to the assessment of the court, on a case-by-case basis.

Use Cases for Standard Electronic Signature (SES)

Use cases where an SES may be appropriate include:

• commercial agreements between corporate entities, including NDAs, procurement documents  (other than procurements by state agencies and state owned companies, which must use QES compliant with the E-Signature Law), and sales agreements

• consumer agreements, including new retail account opening documents

NOTE: Kazakhstan’s E-Signature Law recognizes only the “electronic digital signature,” which is similar to a QES. Because the E-Signature Law recognizes only the “electronic digital signature”, the admissibility of a document signed electronically with any other form of electronic signature may be left to local court discretion.

Use Cases for Other Types of Electronic Signature (e.g. Digital Signature, AES

Use cases where an electronic signature other than SES may be required include:

• Qualified Electronic Signature (QES) - Commercial agreements including NDAs, procurement documents, sales agreements

• QES - Consumer agreements including new retail account opening documents

• QES - Bids in connection with procurement tenders by state authorities and state owned companies

• QES - Court documents such as appeals, motions which are submitted electronically

• QES – Sale and purchase of goods and services

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.

• Formal notarization - certain corporate documents, such as an agreement on the sale and purchase of participation interests in charter capitals of Kazakhstani limited liability partnerships

• State registration (with or without formal notarization) - real estate documents, such as lease agreements for a term exceeding one year

• State registration (with or without formal notarization) – real property transfer contracts

• State registration (with or without formal notarization) - intangible property transfers that are subject to state registration, such as patent and copyright assignments)

• Handwritten - certain HR documents

[1] An AES is an “advanced electronic signature”, a type of electronic signature that meets the following requirements: (a) it is uniquely linked to the signatory; (b) it is capable of identifying the signatory; (c) it is created using means that are under the signatory’s sole control; and (d) it is linked to other electronic data in such a way that any alteration to the said data can be detected.

[2] 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.

Local Technology Standards

Local law recognizes locally certified digital signatures, which are analogous to qualified electronic signatures (QES), as enforceable, and will automatically be admitted into evidence. However, other signatures may be enforceable on a case-by-case basis. 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. A foreign electronic signature having a foreign certificate will be recognized as a qualified “electronic digital signature” in Kazakhstan if (a) there is an international treaty to that effect, (b) the relevant foreign certification authority is registered with the trusted third party of the Republic of Kazakhstan (i.e., state enterprise "State Technical Service" under the Ministry of Transport and Communications of Kazakhstan), or (c) the relevant foreign trusted third party is registered with the trusted third party of the Republic of Kazakhstan.