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Practical Considerations: Execution of Documents March 2020

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Practical Considerations: Execution of Documents March 2020 1 COVID-19 Practical Considerations: Execution of Documents March 2020 Due to the outbreak of COVID-19 and resulting restrictions on travel and meetings, it is necessary to find practical solutions to minimise disruptions to business transactions, while ensuring compliance with public health recommendations regarding containment of the virus. In light of the restrictions in place, for health recommendations regarding social and countersigned by the company many organisations the usual authorised distancing. secretary, a second director or another signatories may be unavailable, or not person appointed by the directors for that available at their usual location. We In respect of the execution of documents purpose. Some companies have specified outline some practical solutions to where signatures must be witnessed, in their constitutions that the signature of consider, including that many documents where a signatory uses an electronic only one director is required when affixing are capable of being validly executed signature (e.g. an individual executing the seal. Again, this is something you may using an electronic signature1, provided a deed on his/her own behalf, or an wish to check for in your constitutional that applicable execution formalities are attorney executing a deed on behalf documents. satisfied, and there are no restrictions on of a body corporate), the witnessing the use of electronic signatures in relation requirement is met where either: There is currently no electronic means to the document in question. for affixing a seal. However, companies • the witness is physically present can grant a power of attorney (which when the signatory applies his/her is not a deed, and does not need to Authorised Signatories electronic signature, and the witness be executed under the common seal) then applies his/her electronic to one or more individuals to execute Consider appointing additional authorised signature underneath as witness; or signatories, and whether any additional documents (including deeds) on its behalf. approvals need to be obtained to do this. • the witness is physically present The attorney then executes the document when the signatory applies his/ (using his/her electronic signature where her electronic signature, but does appropriate) on the company’s behalf Meetings not have his/her own electronic without any requirement for the company Check your constitutional documents to signature, and therefore prints the seal to be affixed (but his/her signature see whether board meetings can be held electronically-signed document and must be witnessed if the document is a by telephone or videoconference. witnesses using a wet-ink signature. deed). This may be a practical solution where a company is presented with a situation where a document needs to Witnessing Documents ‘Under Seal’ and Powers be executed under its common seal, but Certain documents must be witnessed of Attorney the signatories and the common seal (e.g. a deed executed by an individual). When an Irish company executes a deed, are not necessarily in the same location The witness should be physically present it generally does so ‘under seal’, by affixing (as we expect to be the case with many in the same location as the signatory its common seal as authorised by the companies at the moment). and observe their signature. A witness board of directors. It will often also use must not be party to the document, and its common seal to execute documents Additional Practical Considerations while it is regarded as best practice for that are not deeds. Unless the company’s a witness to be unconnected with the constitution provides otherwise, any Some additional practical issues to signatory, that may not be practical in document to which the common seal consider in relation to the use of the current environment in light of public is affixed must be signed by a director electronic signatures include: 1The use of electronic signatures in Ireland is governed by Regulation arthurcox.com (EU) No 910/2014) (“eIDAS”) and the Electronic Commerce Act 2000. Covid 19: Practical Considerations - Execution of Documents 2 • Consent: Under Irish law which restrict the use of electronic a more complex form. However it is counterparty consent is required signatures. worth noting that wet-ink signatures to a party using an electronic carry many of the same risks (e.g. signature. This consent may be • Filing Requirements: Registries, forgery). implied, however best practice is to including the Companies Registration obtain the express consent of the Office, the Property Registration • International Transactions: Where counterparty where possible. When Authority and the Intellectual a document is governed by the law dealing with public bodies, electronic Property Office of Ireland require of another jurisdiction or where non- signatures may only be used where certain filings to be delivered as wet- Irish parties are involved, it would the public body consents to their use ink originals. The requirements of be sensible to seek confirmation and if the particular IT requirements each such registry (and any relevant from local counsel in the other of that public body have been international registry) should be jurisdiction regarding the recognition satisfied. checked before a decision is made as of electronic signatures. to whether to use electronic or wet- For any • Restrictions: Certain categories of ink signatures. • Virtual Execution: documents (including wills; trusts; transaction where the parties enduring powers of attorney; deeds • Forms of Electronic Signature: are not physically together and of assurance of interests in real Irish law is ‘technology neutral’ on the executed documents are to be property; property registration forms of electronic signature that may circulated electronically (regardless application forms; affidavits or be used to sign a document. Forms of whether documents are executed statutory or sworn declarations; of electronic signature vary from electronically, or comprise scanned and documents required by the applying a JPEG signature, including copies of wet-ink documents) parties rules, practices or procedures of a typed name, to using a digital should ensure they comply with a court or tribunal) cannot, for signature created using encryption guidance on the ‘virtual’ execution of the time being, be signed using technology. Some forms of electronic documents issued by the Law Society electronic signatures2. It is also signature will be more secure, and of Ireland. important to check whether there therefore may carry more evidential 2 are any contractual provisions in weight than others. There may be an Section 10, Electronic Commerce Act, 2000. the document which is to be signed increased risk of repudiation when using a basic electronic signature over This document contains a general summary of developments and is not K E Y C O N TACT S a complete or definitive statement of the law. Specific legal advice should be Please contact your usual Arthur Cox contact obtained where appropriate. Maedhbh Clancy Suzanne Kearney, Of Counsel Professional Support Lawyer +353 1 920 1225 +353 1920 1649 [email protected] [email protected] Dearbhla Considine Sinéad Cantillon Professional Support Lawyer Professional Support Lawyer +353 1 920 1108 +353 1 920 1086 [email protected] [email protected] Dublin Belfast London New York San Francisco +353 1 920 1000 +44 28 9023 0007 +44 207 832 0200 +1 212 782 3294 +1 415 829 4247 [email protected] [email protected] [email protected] [email protected] [email protected] arthurcox.com.
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