E-signatures in commercial contracts in Singapore

What "written form" or "in writing" means depends on the statutory requirement for that particular agreement and how "written form" or "in writing" is defined. The Interpretation Act (Cap. 1) provides for a number of default provisions on the meaning of certain words and expressions used in the local legislation, which would apply unless a contrary intention is expressed or implied in a particular statute. Specifically, section 2 of the Interpretation Act (Cap. 1) defines "writing" as: "include printing, lithography, typewriting, photography and other modes of representing or reproducing words or figures in visible form".

Where the Interpretation Act (Cap. 1) definition applies (i.e. in the absence of contrary intention), a statutory requirement for writing will generally include emails and electronic documents (SM Integrated Transware Pte Ltd v Schenker Singapore Pte Ltd [2005] 2 SLR(R) 0651 at [76]-[79]).

1. Mortgages / charges / leases exceeding three years, Section 6(d) of the Civil Law Act (Cap. 43) and the Land Titles Act (Cap. 157);
2. Transfers of shares of a company incorporated in Singapore (Section 128 of the Companies Act (Cap. 50); 
3. Legal assignments of intellectual property rights;
4. Intellectual property licences (Section 42 of the Trade Marks act (Cap. 332); Section 37(2) (b) Registered Designs Rules; Copyright Act (Cap. 63) definition of ""exclusive licensee""); 
5. Contracts of guarantee (Section 6(b) of the Civil Law Act (Cap. 43);
6. Contracts relating to land (Section 6(d) of the Civil Law Act (Cap. 43); however the Singapore High Court has recognised electronic correspondence to be writing that would satisfy this requirement – see SM Integrated Transware Pte Ltd v Schenker Singapore Pte Ltd [2005] SGHC 58);
7. A special promise to pay damages out of one's own estate (Section 6(a) of the Civil Law Act (Cap. 43); 
8. An agreement made on the consideration of marriage (Section 6(c) of the Civil Law Act (Cap. 43); and
9. An agreement that is not to be performed within one year from its conclusion (Section 6(e) of the Civil Law Act (Cap. 43)."

No. However, where there is a statutory requirement to retain any document, record or information, this may be retained in the form of an electronic record if the following conditions are satisfied, Section 9(1) of the Electronic Transactions Act (Cap. 88):

• the information contained remains accessible so as to be usable for subsequent reference;
• the electronic record is retained in the format in which it was originally generated, sent or received, or in a format, which can be demonstrated to represent accurately the information originally generated, sent or received;
• information enabling the identification of the origin and destination of an electronic record and the date and time when it was sent or received, is retained; and
• any additional requirements relating to the retention of such electronic records specified by the public agency, which has supervision over the requirement for the retention of such records are complied with.

Signing of electronic documents under Order 63A, Rule 9 of the Rules of Court Singapore Section 116A of the Evidence Act (Cap. 97).

The Singapore courts have recognised the provisions of the Electronic Transactions Act (Cap. 88) in various decisions. In terms of court procedures and processes, ss 7 and 8 of the Electronic Transactions Act (Cap. 88) provide that an electronic record or signature satisfies any rule of law requiring writing or signature. However, by virtue of s 4(1) of the Act, ss 7 and 8 do not apply to any rule of law requiring writing or signatures for various matters listed in our response below (SM Integrated Transware Pte Ltd v Schenker Singapore Pte Ltd [2005] 2 SLR(R) 0651 at [76]).

Under section 4 (read together with the First Schedule) of the Electronic Transactions Act (Cap. 88), the following documents cannot be validly signed with electronic signatures:

1. the creation or execution of a will;
2. negotiable instruments, documents of title, bills of exchange, promissory notes, consignment notes, bills of lading, warehouse receipts or any transferable document or instrument that entitles the bearer or beneficiary to claim the delivery of goods or the payment of a sum of money;
3. the creation, performance or enforcement of an indenture, declaration of trust or power of attorney, with the exception of implied, constructive and resulting trusts;
4. any contract for the sale or other disposition of immovable property, or any interest in such property; and
5. the conveyance of immovable property or the transfer of any interest in immovable property.

In addition, the legal position on the electronic creation or execution of a deed is not settled law in Singapore. Please note that the creation or execution of a deed requires a witness to be physically present to attest. Therefore, it is not recommended to rely on electronic signatures for the creation or execution of a deed.

Electronic Transactions Act (Cap. 88)