eSignature Legality Guide

The EAS defines several types of electronic signatures, each with its own requirements. The main types include (not an exhaustive list):

• Electronic Signature: Electronic data attached to or logically associated with other electronic data, used for authentication (art. 2 lit. a EAS).
• Advanced Electronic Signature: An electronic signature that:
  1. is uniquely assigned to the signatory,
  2. enables identification of the signatory,
  3. is created using means under the sole control of the signatory, and
  4. is linked to the signed data so that any later changes can be detected (art. 2 lit. b EAS).
• Regulated Electronic Signature: An advanced electronic signature generated with a secure signature creation device, based on a regulated (digital) certificate issued to a natural person and valid at the time of signing (art. 2 lit. c EAS).
• Qualified Electronic Signature (QES): A regulated electronic (digital) signature that relies on a qualified (digital) certificate (art. 2 lit. e EAS).

The following types of documents generally do not require a specific form under Swiss law, so any electronic signature as defined above may be used:

• Procurement (see exceptions below)
• NDAs
• Software Licensing
• Insurance (for policies only)
• Life Sciences
• Healthcare
• Technology sector
• Documents to be Recorded.

Although electronic signatures are not forbidden for the following types of transactions, it is advisable to use caution, as a QES may be required:

• HR
• Procurement (if the document includes a factoring agreement)
• Banking
• Lending
• Insurance (if the document contains a termination notice from the insured)
• Consumer Transactions; and
• Government Filings.

Swiss law is technology-neutral, so there are no specific legal standards or best practices for the enforceability of electronic signatures. Only Qualified Electronic Signatures (QES), as opposed to simple electronic signatures, are considered equivalent to handwritten signatures. Therefore, a Swiss law contract that requires written form and is signed with a QES will generally be valid, provided there are no other grounds for invalidity.

Additionally, for certain legal acts and documents to be enforceable, they must be signed with a Qualified Electronic Signature. Such documents can be used to support summary motions for the provisional removal of debt enforcement objections, whereas documents signed with other types of electronic signatures cannot.

The following two cases illustrate how Swiss courts have considered electronic signatures:

• Swiss Federal Court, 5A_503/2019, section 3.3, and
• Swiss Federal Court, 8C_256/2015, section 2.4, section 3.3.