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Nicholas Burkill
Partner | Legal
British Virgin Islands
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Nicholas Burkill
Partner
British Virgin Islands
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The enforceability of digital contracts and electronic signatures (e-signatures) in the British Virgin Islands (BVI) is presently governed by the Electronic Transactions Act 2001 (the Act).
The Act expressly states that "information shall not be denied legal effect, validity or enforceability on the sole ground that:
(a) it is in the form of an electronic record; or
(b) it is not contained in the electronic record purporting to give rise to such legal effect, but it is merely referred to in that electronic record."
'Electronic record' is defined under the Act as information generated, sent, received or stored by electronic means including electronic data interchange, electronic mail, telegram, telex or telecopy.
Formation of a Contract
The Act provides that, unless otherwise agreed by the parties, an offer or the acceptance of an offer may, in relation to the formation of a contract, be recorded by electronic means.
Provided that the relevant documents meet the requirements of a binding contract under BVI law, the use of electronic records does not affect their legal effect, validity or enforceability as a contract.
Electronic Signatures
The requirement for a signature (or seal) on a document can be satisfied by means of an electronic signature, provided that the electronic signature:
An electronic signature is presumed reliable if:
Scope of the Act
Exclusions
The Act does not apply to any rule of law requiring writing or signatures for any of the following:
Territorial
The Act's territorial scope is not expressly confined to the BVI and so a party to a document does not need to be located or incorporated in the BVI at the time of execution for the Act to apply. For the purposes of BVI law, the provisions of the Act will apply to the execution of a contract governed by BVI law, irrespective of the location or incorporation of the parties. It will, however, be necessary to ensure that the law of the place of a company's incorporation permits electronic signatures and doesn't contain restrictions on the scope of documents that can be signed by electronic signature.
In the event that a document is governed by foreign law, but the statutory provisions of the foreign jurisdiction provide that the execution formalities of the jurisdiction of incorporation of the relevant company shall be followed in order to be valid, then the Act shall apply to the execution of such a document by a BVI company. In the case of a deed a BVI company will be required to apply a wet signature.
It should be noted that S103(4C) of the BVI Business Companies Act 2004 may allow a previously wet inked signature page to be validly electronically attached to a final document (whether or not a deed) under the appropriate authority of the executing BVI company.
Further considerations
Generally, an electronic signature will be effective to conclude a contract provided that:
It is anticipated that the Act will be repealed and replaced later in 2020 by a new Electronic Transactions Act, with more modernised provisions, recognising and embracing new technological developments in digital transactions. The new act will only enhance the acceptance and use of electronic signatures and digital contracts under BVI law.
Ogier's team is fully versed in the use of Electronic Signatures and Digital Contracts across our global jurisdictions. We can also prepare digital contracts for electronic signature on our clients' behalf, enabling them to benefit from the technology without needing to invest in the infrastructure themselves. To find out more, contact any of the team members on the right or visit our online services page.
Nicholas Burkill
Partner | Legal
British Virgin Islands
Nicholas Burkill
Partner
British Virgin Islands
Michael Killourhy
Partner | Legal
British Virgin Islands
Michael Killourhy
Partner
British Virgin Islands
Brian Lacy
Partner | Legal
British Virgin Islands, Jersey
Brian Lacy
Partner
British Virgin Islands, Jersey
Ogier is a professional services firm with the knowledge and expertise to handle the most demanding and complex transactions and provide expert, efficient and cost-effective services to all our clients. We regularly win awards for the quality of our client service, our work and our people.
This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.
Regulatory information can be found under Legal Notice
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