eSignature Legality Guide

Common scenarios where SES is suitable include:

• Human resources documents, such as employment contracts, benefits forms, and onboarding paperwork
• Business agreements between companies, including NDAs, procurement contracts, and sales agreements
• Consumer contracts

Certain transactions are excluded from digital or electronic processes, or require specific formalities such as handwritten (wet ink) signatures or notarial procedures, which are generally not compatible with electronic signatures or digital transaction management.

• Handwritten or witnessed – creation of any legal instrument or document under any written law relating to Islamic law (excluded by ETA)
• Handwritten or witnessed – creation or execution of a will under any written law relating to wills (excluded by ETA)
• Handwritten or witnessed – negotiable instruments (excluded by ETA)
• Handwritten or witnessed – indentures (excluded by ETA)
• Handwritten or witnessed – declaration of trust (except constructive and resulting trusts) (excluded by ETA)
• Handwritten or witnessed – power of attorney (excluded by ETA)
• Handwritten or witnessed – any contract for the sale or other disposition of immovable property, or any interest in such property (excluded by ETA)
• Handwritten or witnessed – conveyance of immovable property or transfer of any interest in such property (excluded by ETA)
• Handwritten or witnessed – documents of title relating to immovable property (excluded by ETA)

[1] Secure Electronic Signature – An electronic signature is considered a “secure electronic signature” if, through a prescribed security procedure or a commercially reasonable security procedure agreed upon by the parties, it can be verified that at the time of signing: (a) it is unique to the signer; (b) it can identify the signer; (c) it is created using means under the sole control of the signer; and (d) it is linked to the electronic record so that any changes to the record invalidate the signature.

[2] Secure Digital Signature – A digital signature is considered secure if it was created during the validity period of a certificate, is verified by the public key in that certificate, and the certificate is trustworthy as an accurate binding of a public key to a person’s identity.

Brunei adopts a tiered model for electronic signatures, recognizing the concept of a ‘Secure Electronic Signature’ that uses digital signature technology and requires certification by the Brunei government. Although not mandatory for any specific transaction, using a Secure Electronic Signature provides a presumption of authenticity, and anyone challenging its validity must provide evidence to the contrary.