Technologically neutral, the ETL was established to promote public confidence in the validity, integrity and reliability of conducting transactions electronically and recognises electronic records as records created, stored, generated, received or communicated by electronic means.

The definition of an “electronic signature” under the ETL is deliberately broad:
“An electronic sound, symbol or process attached to or logically associated with the intent to sign the electronic record”.

Electronic signing typically involves either affixing an electronic signature to a document or using a digital signature application like DocuSign or eSign.

COMMON LAW

The common law adopts a pragmatic approach to what will satisfy a signature requirement. In determining whether the method of signature adopted demonstrates an authenticating intention the courts adopt an objective approach, considering all of the surrounding circumstances.

The ETL is not prescriptive as to the method of authentication protocol used. An electronic signature will be considered to be reliable where:

  • the means of creating the electronic signature is linked to the signatory and to no other person;
  • the means of creating the electronic signature was, at the time of signing, under the control of the signatory and of no other person; and
  • any alteration to the electronic signature, made after the time of signing, is detectable.


Statutory and Other Exceptions to Electronic Signatures of Any Kind

There are important notable exceptions.  Documents which cannot be signed electronically are:

  • Wills and other testamentary instruments.
  • Instruments which are required to be registered at the Cayman Islands Land Registry (including transfers of land, leases and charge instruments).

Electronic signatures should also not be used in Cayman where the requirements of a specific law, contract or an entity’s constitutional documents expressly provide (or may be interpreted to mean) that a hard copy document and wet ink signature are required.  Certain governmental, judicial or regulatory authorities may also require a wet ink original.  These exceptions should be considered on a case by case basis.

SPECIFIC Considerations

Different types of documents have different execution formalities.  Before an electronic signature is used, care must always be taken to ensure that any particular document is validly executed in accordance with the relevant statute and the requirements specific to the entity in question (for example, a company’s constitutional documents may require that deeds be executed under seal, or be signed by two directors).  Parties should also continue with the established practice of ensuring that the relevant signatory is duly authorised to sign and clear execution instructions are provided to signatories, as would be the case with ‘wet ink’ signing.

For further information please contact Caroline Barton or your usual Appleby contact.

Type

Insight

Locations

Cayman Islands

Share
Twitter LinkedIn Email Save as PDF
More Publications
14 Jul 2020 |

Commercial Real Estate in the Cayman Islands: An Overview

First published by Practical Law: Corporate Real Estate Global Guide - Cayman Islands update 2020. ...

30 Jun 2020 |

Protecting Personal Data – the New Normal

One unanticipated consequence of the COVID pandemic has been the huge increase in the collection of ...

Contributors: Jennifer Parsons
29 Jun 2020 |

Cayman Regulatory Newsletter Q2 2020

Appleby Cayman’s second quarterly publication of the year focuses on regulatory developments, incl...

12 Jun 2020 |

Investment Funds: Opportunities During Covid-19

Fund managers are as affected as anyone by the coronavirus shutdown and while many fund managers con...

26 May 2020 |

Economic Substance in the time of COVID-19

Cayman, like many other jurisdictions, introduced its ES Law in response to international pressure t...

26 May 2020 |

Technology & Innovation Update Q2 2020

Technological developments have been accelerating at an unprecedented pace in Asia - the first regio...

7 May 2020 |

Derivatives – Cayman Counterparty Considerations in Market Uncertainty

In this briefing we consider the enforceability of common set-off clauses found in OTC derivative tr...

Contributors: Dean Bennett
5 May 2020 |

The 2020 Cayman Islands Real Estate guide

This country-specific Q&A provides features information on the impact of disruptive technologies...

17 Mar 2020 |

Cayman Regulatory Newsletter Q1 2020

Appleby Cayman’s first quarterly publication of the year focuses on the topics making waves now, i...