In November 2011, in the case of WS Tankship II BV v The Kwangju Bank Ltd and another, the High Court of England and Wales discussed whether a guarantee sent by SWIFT message can be considered “signed” in terms of the Statute of Frauds 1677.
Blair J in the High Court stated that a guarantee issued and sent by SWIFT message was "in writing and signed by the party to be charged" for the purpose of section 4 of the Statute of Frauds 1677. In this case, the name of the guarantor was not included anywhere in the body of the message; the guarantor was referred to throughout only as “we”. The guarantor therefore argued that the guarantee was not “signed” as required by the Statute of Frauds. The Court considered that it would be surprising if the guarantee was held not be binding and that SWIFT authentication was equivalent to signing and so complied with the spirit if not the letter of the Statute of Frauds. In addition, the guarantor’s name appeared in the header of the guarantee which had been automatically inserted by the SWIFT messaging system. The guarantor claimed this did not amount to “signature”; however, the Court did not accept this argument.
Although not the determinative point in the case, the statement by Blair J is of interest in situations where a guarantee is sent by SWIFT message, as it provides persuasive guidance such guarantees will be considered “signed” in terms of the Statute of Frauds and may be relied up by the parties to the transaction.