eSignature Legality Guide

Article 36 of the E-Signature Law, added on August 27, 2021, expanded the Foreign Trade Committee’s (COMEX) authority to verify and use electronic signatures for investment promotion and foreign trade. This provision aims to prevent the misuse of electronic signatures for illicit trade or transnational organized crime.

Article 63 of the E-Signature Law, introduced on January 31, 2023, through the Organic Law For Digital And Audiovisual Transformation, requires the Ministry of Telecommunications to provide software within 120 days of the law’s enactment for use by public authorities in administrative processes. This software must allow authorities to verify the authenticity of electronic signatures on documents submitted for their review. The article also sets standards for such software and requires the telecommunications regulator to select appropriate software based on the principle of technological neutrality, international standards, and best practices.

In Ecuador, only the "qualified electronic signature" (QES) is officially recognized. A QES is a digital signature that meets specific government requirements, including the use of a secure signature creation device, and is certified as "qualified" by the government or an authorized entity.

The following types of transactions are generally permitted to use electronic signatures, provided the signature is a QES:

• Commercial contracts between companies, such as NDAs, sales contracts, and service agreements.
• Consumer contracts, including documents for opening new retail accounts.
• Employee confidentiality and invention agreements
• Insurance policies
• Certificates issued by government entities
• Software license agreements
• Tax documents (such as invoices and withholding receipts)

The following types of transactions are either specifically excluded from digital or electronic processes, or require handwritten (wet ink) signatures or formal notarial procedures, which are generally not compatible with electronic signatures:

• Transfers and agreements involving real estate property of any kind
• Promises of sale and assignment of rights for real estate
• Creation of mortgages and mortgage loan agreements
• Establishment of rights of use and habitation
• Liquidation or dissolution of marital partnerships
• Division and allocation of real estate
• Creation of agricultural liens
• Company incorporation agreements (when executed as a public deed before a Notary Public)
• Consortium, strategic alliance, and partnership formation agreements (when executed as a public deed before a Notary Public)
• Changes in capital, mergers, and spin-offs (when executed as a public deed before a Notary Public)
• Company reactivation (when executed as a public deed before a Notary Public)
• Company dissolution and liquidation (when executed as a public deed before a Notary Public)
• Amendments to bylaws, term extensions, address changes, branch openings, and partner exclusions (when executed as a public deed before a Notary Public)
• Contracts for services related to hydrocarbon exploration or similar agreements
• Fiduciary restitution
• Matters related to usufruct
• Division of inherited property
• Inventory write-offs
• Creation of commercial trusts
• Granting of mining and radio/TV frequency concessions
• Transfers involving trusts
• Mortgage cancellations
• Renunciation or termination of usufruct
• Other trust-related matters
• Establishment of servitudes
• Wills
• Affidavits
• Powers of attorney
• Declarations of horizontal property regime
• Transfer of shares in a limited liability company (as per the Law on Companies)
• Any document executed as a deed (as per Notary Law)
• Legalization of signatures on documents that are not deeds (as per Notary Law)
• Divorce by mutual consent, only when there are no minor children or dependents (as per Notary Law)
• Liquidation of company assets (as per Notary Law)

Local regulations recognize QES issued by accredited local providers as valid; other types of signatures may also be accepted if they comply with evidentiary requirements outlined in Section 10 of the General Regulation to the Law on Electronic Commerce, Electronic Signatures and Data Messages, as described below.

• Certification practices that are based on or compatible with international standards;
• Software, hardware, communications, and other physical components suitable for electronic signatures, with security that meets international standards; and
• Management systems that comply with international standards, as well as requirements for confidentiality, transparency, and non-discrimination in service provision.

Section 16 of the General Regulation requires that electronic signature certificates issued abroad must be revalidated by a Certification Agency accredited by the local authority, which will verify the reliability of both the certificate and its issuer.

Section 17 of the General Regulation states that Certification Agencies authorized to operate in Ecuador, either directly or through third parties, but not accredited by the local authority, are considered “non-accredited information-certifying agencies.” These agencies must inform clients of this status and, upon request from the competent authority, demonstrate the technical adequacy and reliability of the certificates they issue.

Electronic signatures that do not meet the requirements set out in the E-Signature Law are not considered valid. Failure to comply with these requirements may result in the electronic signature being deemed defective, which can affect its enforceability.