An electronic signature will generally be legally effective to conclude a simple contract from a BVI law perspective, so long as:
- for a BVI company, there are no restrictions on the use of electronic signatures in its constitutional documents (this is particularly relevant when a company has old or outdated constitutional documents);
- the governing law of the document in question (if not governed by BVI law) permits electronic signatures and does not otherwise contain restrictions on the type of document that can be signed by way of electronic signature;
- there is nothing in the contractual terms themselves that prohibits electronic signatures; and
- such electronic signature is applied with the requisite intent and appropriate authority.
The exceptions to the general ability of electronic signatures to validly bind a BVI company are in relation to:
- deeds governed by BVI law, which will require wet ink signatures or original seals (not electronic); and
- deeds governed by foreign law, for which laws statutorily provide that execution formalities in the jurisdiction of incorporation of the signing company will need to be followed in order to be valid – in such instances, it is arguable that BVI law would apply as if the deed were governed by BVI law, in which case wet ink signatures or original seals (not electronic) will be required.
It should be noted that section 103(4C) of the BVI Business Companies Act 2004 should allow a previously wet ink signed page to be valid electronically when attached to a final document (whether or not a deed) under appropriate authority of the BVI company.
For further information on this topic please contact Christian Burns-Di Lauro at Ogier by telephone (+44 1534 514000) or email ([email protected]). The Ogier website can be accessed at www.ogier.com.