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In the current situation of the Corona pandemic, companies are faced with the challenge of still having to sign contracts and internal company documents, while most of the authorized signatories are working from home. The question arises how companies can sign and exchange documents electronically and how they can conclude contracts with as little personal contact as possible. The Federal Council has also recognised this urgency - at least partly - and decided on 1 April 2020 to make certain formal simplifications by amending the Ordinance on Electronic Signatures for a limited period of time.
1. When is a Handwritten Signature Mandatory?
The written form requiring a wet ink signature, is only necessary where so expressly prescribed by either (mandatory) statutory provision or by a contractual provision between the parties. Mandatory statutory provisions requiring wet ink signatures are primarily to be found in consumer relationships (B2C), e.g. in tenancy law. Assignments of claims, real estate transactions and certain corporate law related transactions (e.g. circular resolutions of the board of directors) also require (at least) the written form.
HR documents such as absence applications, work time records or appraisal sheets do not need a handwritten signature in order to be valid. Regular employment contracts do in principle also not need to be in writing (except for the apprenticeship contract or specific areas of the employment relationship, such as the agreement of a post-contractual non-competition clause). Other contracts in commercial transactions (B2B) and business documents (e.g. confidentiality agreements, purchase orders, order acknowledgements, invoices, distribution agreements, service agreements) do in general not need to be in writing.
By means of contractual agreements, the parties can make the entering into a legally binding contract or the legally effective adjustment of an existing contract subject to formal requirements. If the parties choose the 'written form' without elaborating further on the specifics thereof (e.g. without indication that email meets such written form requirement), the legal provisions governing the written form are applicable (see below). If both parties nevertheless conclude contracts in another manner, this may be construed as an implicit agreement to waive the initial written form requirement.
2. What are the Alternatives to Handwritten Signatures?
Where a 'wet ink signature' is required, a qualified electronic signature ("QES") may be used instead. This signature type is equivalent to a handwritten signature if it is based on a qualified certificate issued by a certified provider of certification services within the meaning of the legislation on electronic signatures in Switzerland.
Only certificates from certified service providers in Switzerland fulfil such requirement. The following four service providers are currently certified in Switzerland: Swisscom (Schweiz) AG, QuoVadis Trustlink Schweiz AG, SwissSign AG and the Federal Office of Information Technology and Telecommunication. The certificates of several foreign providers (e.g. Adobe Sign, DocuSign) can therefore in general not be used in Switzerland to validly sign documents requiring the written form. However, if foreign providers integrate certificates from certified providers in Switzerland into their products, the respective products could qualify as a QES under Swiss law. With the current modification of the Ordinance on Electronic Signatures, the Federal Council has temporarily reduced the requirements for obtaining a QES by allowing video identification when issuing certificates (draft of the text in German). However, the substantive requirements for a QES and the conditions under which it can replace a handwritten signature, remain unchanged.
In the current exceptional situation, it should also be permissible for the parties to sign the documents by hand, scan them and exchange the scanned handwritten documents electronically (e.g. by email). However, certain authorities (e.g. FINMA) may impose stricter requirements on the parties.
3. What is Applicable in other Cases?
Where written form is not required, contracts may be concluded either orally, by implicit action, or by any other means of expressing the parties' intent. It is possible to use a simple electronic signature (e.g. inserting a scanned signature in a document) or any other form of electronic signature from a Swiss or foreign provider.
The written form requiring a handwritten signature is rarely required by (mandatory) Swiss law, but quite often required by a pre-existing contractual provision between the parties. In such cases, in principle only a 'wet ink signature' or a QES meet such formal requirement. If the written form is required by contract, the parties may, however, amend the contractual written form requirement to their needs at any time by mutual agreement, e.g. by including email or by using market standard signature methods which do not qualify as a QES under Swiss law (such as basic signatures from Adobe or DocuSign).
In all other cases, however, no formal requirements are applicable. Contracts and documents can be validly signed by other means, e.g. by exchanging emails. In the current situation of "social distancing" and home office, this is a most welcome simplification and facilitation of business processes.
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