1. Definition and formal requirements of written legal statements or legal statements legally binding if the law requires written form
  2. Examples for legal statements and contracts where written form is required
  3. Are there special legal provisions for digital archiving and storage of electronic documents? If yes, please describe them
  4. Main and relevant court practices
  5. In which cases are documents only with wet ink signatures accepted?
  6. List of the relevant national legislation
  7. Are the following use cases deemed as written legal statements / legal statements legally binding if the law requires written form in your jurisdiction?

jurisdiction

United Arab Emirates

The UAE has a multi-layered legal system, with legislation issued at Federal and Emirate level. In addition, the UAE contains numerous special economic zones (Free Zones) which can pass their own legislation. For the purpose of this Guide, we have considered the position that applies to the UAE generally (ie, outside of the Free Zones, which we refer to in this Guide as Onshore) as well as the position in the two special financial Free Zones – the Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Market (ADGM). The DIFC and ADGM are based on English Common Law, whereas the UAE Onshore legal system is a Civil Code system, influenced highly by Egyptian law and reflecting basic principles of Islamic Shariah law.

There is no specific definition of what constitutes 'writing' in the context of written legal statements Onshore or in the DIFC or ADGM. 

Onshore 

Onshore, the UAE Federal Law Number 5 of 1985 on Civil Transactions Law (the Civil Code) sets out a number of contracts where written form is required. These include:

  • sale and purchase of immovable property 
  • partnerships 
  • marriage 
  • life annuities 

Whilst writing is not a requirement for a formation of a will, the will being in writing and signed by the testator is a requirement to hear a case related to the matter in court.

Additionally, it is worth noting that whilst there may not be a specific legal requirement for certain contracts / legal statements to be in writing some government departments and other organisations may adopt processes whereby they require documents / contracts / legal statements to be in writing. 

Free Zones

The position in the Free Zones is broadly similar to Onshore and examples of legal statements / contracts where written form is required includes marriage, real estate transactions and certain negotiable instruments. Again, even when there is no specific legal requirement for certain contracts / legal statements to be in writing some government departments and other organisations may adopt processes whereby they require documents / contracts / legal statements to be in writing.

Onshore

Federal Law No. 1/2006 Concerning Electronic Transactions and Commerce (the Electronic Transactions Law) provides that if there is a legal requirement to keep a document, record or information then this will be fulfilled if stored in electronic form, provided that certain conditions listed in Article 5(1) of the Electronic Transactions Law are met. These conditions include that the electronic record must be in its original form or in a form which accurately reflects the information as it was originally generated, sent or received; the information must be accessible; and any information which facilitates the determination of the origin, destination, time and date of the sending or receiving of electronic information should be retained (eg metadata). 

Federal Law 18 of 1993 Issuing The Commercial Transactions Law (the "Commercial Transactions Law") provides that a trading company must keep the originals of all correspondence, telegrams and invoices sent or issued by it for the purpose of its business for a minimum period of five years from the date of issue or receipt (Article 30). It therefore follows that this requirement will be met if the foregoing is stored in electronic form, provided that the Article 5(1) conditions of the Electronic Transactions Law are met.  

Free Zones

The position in the DIFC and ADGM is broadly the same as Onshore on this point. The respective Electronic Transactions legislation for each of those Free Zones (the DIFC Electronic Transactions Law No2/2017 and the ADGM Electronic Transactions Regulations 2021) confirm that a legal requirement to keep records or information will be met by records or information stored in electronic form, again subject to similar conditions to those set out in the Federal Electronic Transactions Law being met.  

4. Main and relevant court practices

Onshore 

The Electronic Transactions Law makes a distinction between “protected electronic signatures” and other electronic signatures. An e-signature will be considered protected if:

  1. it is possible to verify the signature through the implementation of a precise authentication procedure in accordance with the Electronic Transactions Law; or 
  2. if it is commercially acceptable and agreed between the parties that at the time of its execution it is attributable only to the person using it; it is possible to prove that person’s identity; it is fully controlled by that person and it is connected to the relevant electronic message by a link that provides reliable proof of the signatures validity. 

If the electronic signature in question is not considered a protected e-signature (because it fails to meet the criteria detailed above) then in accordance with Article 18 of the Electronic Transactions Law, courts in the UAE will consider the reasonableness of reliance on the electronic signature. Factors determining reasonableness include whether it is standard practice to rely upon electronic signatures for the particular type of transaction in consideration, the value / importance of the transaction and whether the person relying on the e-signature took appropriate steps to check that it was valid.  

Note that Onshore UAE is a civil law jurisdiction and so judgments in Onshore UAE Courts are non-binding.

Free Zones 

The DIFC Electronic Transactions Law and the ADGM Electronic Transactions Regulations do not make the same distinction between protected e-signatures and other e-signatures. Instead, the respective legislation sets out criteria that can be applied to determine the validity and reliability of an e-signature. 

The DIFC and ADGM follow precedent created by earlier court decisions.  

5. In which cases are documents only with wet ink signatures accepted?

Onshore 

The Electronic Transactions Law excludes the following types of transactions from its scope, thereby necessitating wet ink signatures:

  • transactions and matters concerning civil status (eg marriage, divorce and wills); 
  • title deeds of real estate;
  • bonds in circulation/negotiable instruments;
  • transactions concerning the sale and purchase of real estate, its disposition and rental for periods in excess of ten years and the registration of any other rights related to it; and
  • any document required by law to be executed before a Notary Public. 

There are also separate specific rules regarding when government entities can use, or rely upon e-signatures and when wet signatures are required.

Free Zones

Both the DIFC Electronic Transactions Law and ADGM Electronic Transactions Regulations exclude the following types of transactions from their respective scope, thereby necessitating wet ink signatures:

  • the creation, performance or enforcement of a power of attorney;
  • the creation and execution of wills, codicils or testamentary trusts; and 
  • transactions involving the sale, purchase, lease (for a term of more than 10 years) and other disposition of immovable property and the registration of other rights relating to immovable property. 

In addition to the above, the DIFC Electronic Transactions Law also confirms that wet ink signatures will be required for the creation, performance or enforcement of a declaration of trust (with the exception of implied, constructive and resulting trusts) and the creation, execution and use of affidavits or affirmations as evidence in court proceedings.

In addition to the above, the ADGM Electronic Transactions Regulations also provide that documents requiring notarisation before a notary public require a wet ink signature.    

6. List of the relevant national legislation

Onshore 

Federal Law No. 1/2006 Concerning Electronic Transactions and Commerce (the “Electronic Transactions Law”) – which sets out the requirements for relying on electronic documents, records and signatures Onshore. 

Federal Law No. 10 of 1992 the Law of Evidence in Civil & Commercial Transactions as amended (the "Law of Evidence") – which provides that electronic writing, instruments, registers and documents shall have the same evidential weight as official and customary writing and instruments if they fulfil the conditions and provisions prescribed in the Electronic Transactions Law.

Free Zones

Electronic Transactions Law No2/2017 - which sets out the requirements for relying on electronic documents, records and signatures in the DIFC. 

ADGM Electronic Transactions Regulations 2021 - which sets out the requirements for relying on electronic documents, records and signatures in the DIFC.

1. Electronic document signed with qualified electronic signature (QES as defined in the eIDAS Regulation) and with a time stamp

Onshore - Yes
DIFC – Yes 
ADGM – Yes 

2. Electronic document signed with qualified electronic signature (QES as defined in the eIDAS Regulation) without a time stamp

Onshore - Yes
DIFC – Yes 
ADGM – Yes 

3. Electronic document signed with advanced electronic signature (AdES as defined in the eIDAS Regulation) and with a time stamp

Onshore - Yes
DIFC – Yes 
ADGM – Yes 

4. Electronic document signed with advanced electronic signature (AdES as defined in the eIDAS Regulation) without a time stamp

Onshore - Yes
DIFC – Yes 
ADGM – Yes 

5. Electronic document signed with advanced biometric signature

Onshore - Yes
DIFC – Yes 
ADGM – Yes 

6. Electronic document signed with a simple, standard electronic signature (SES)

Onshore - Depends on the circumstances (where reasonable to do so having regard to the factors set out in Article 19 of the Electronics Transactions Law). 
DIFC – Likely (depends on the context and surrounding circumstances at the time of its creation, execution, or adoption).  
ADGM – depends on the circumstances (if a person can nevertheless demonstrate that the e-signature is reliable and appropriate for the purpose for which the electronic record was generated or communicated in light of the circumstances (including any relevant agreement between the parties) then it will be acceptable.

7. Scanned electronic version of the original paper-based document with handwritten signature sent as an attachment in ordinary e-mail without an electronic signature, but with standard e-mail signature panel

Onshore – valid in principle but if the requirements of the law are not met then more susceptible to evidential challenge.  Not recommended for significant transactions.
DIFC – Possibly (depends on the context and surrounding circumstances at the time of its creation, execution, or adoption). 
ADGM – depends on the circumstances (if a person can nevertheless demonstrate that the signature is reliable and appropriate for the purpose for which the electronic record was generated or communicated in light of the circumstances (including any relevant agreement between the parties) then it will be acceptable.

8. Legal statement sent as a text of an ordinary e-mail without an electronic signature, but with a standard e-mail signature panel

Onshore - Depends on the circumstances (where reasonable to do so having regard to the factors set out in Article 19 of the Electronics Transactions Law), although this would not be common practice.
DIFC – Likely (depends on the context and surrounding circumstances at the time of its creation, execution, or adoption).  
ADGM – depends on the circumstances (if a person can nevertheless demonstrate that the email signature panel is reliable and appropriate for the purpose for which the electronic record was generated or communicated in light of the circumstances (including any relevant agreement between the parties) then it will be acceptable.

9. Legal statement sent in an SMS

Depends on circumstances for Onshore, DIFC and ADGM. Not recommended for significant transactions.

10. Electronic document with a copy-pasted image of a handwritten signature, sent as an attachment of an ordinary e-mail

Onshore - Depends on the circumstances (where reasonable to do so having regard to the factors set out in Article 19 of the Electronics Transactions Law). Not recommended for significant transactions.
DIFC – Likely (depends on the context and surrounding circumstances at the time of its creation, execution, or adoption).  
ADGM – depends on the circumstances (if a person can nevertheless demonstrate that the signature is reliable and appropriate for the purpose for which the electronic record was generated or communicated in light of the circumstances (including any relevant agreement between the parties) then it will be acceptable."

11. Electronic document with the typed name of the signer and sent as an e-mail attachment

Onshore - Depends on the circumstances (where reasonable to do so having regard to the factors set out in Article 19 of the Electronics Transactions Law). Not recommended for significant transactions.
DIFC – Depends on the context and surrounding circumstances at the time of its creation, execution, or adoption.   
ADGM – depends on the circumstances (if a person can nevertheless demonstrate that this is reliable and appropriate for the purpose for which the electronic record was generated or communicated in light of the circumstances (including any relevant agreement between the parties) then it will be acceptable.

12. Electronic legal statement sent in a social-media message sending application (e.g. Messenger, Viber, LinkedIn, Facebook message, etc.)

Depends on circumstances for Onshore, DIFC and ADGM. 

13. Electronic legal statement sent in a chat application

Depends on circumstances for Onshore, DIFC and ADGM. 

14. Electronic document created on an electronic platform ensured by the other party requesting the legal statement (without an electronic signature) by another party whom the operator of the platform granted access 

Depends on circumstances for Onshore, DIFC and ADGM. 

15. Electronic document signed in DocuSign/Adobe Sign with a simple standard electronic signature (no QES or AdES)

Onshore - Depends on the circumstances (where reasonable to do so having regard to the factors set out in Article 19 of the Electronics Transactions Law).
DIFC – Likely (depends on the context and surrounding circumstances at the time of its creation, execution, or adoption).  
ADGM – depends on the circumstances (if a person can nevertheless demonstrate that the e-signature is reliable and appropriate for the purpose for which the electronic record was generated or communicated in light of the circumstances (including any relevant agreement between the parties) then it will be acceptable.

16. Electronic document signed with a qualified electronic seal as defined in the eIDAS Regulation

Onshore - Depends on the circumstances (where reasonable to do so having regard to the factors set out in Article 19 of the Electronics Transactions Law). 
DIFC – Likely (depends on the context and surrounding circumstances at the time of its creation, execution, or adoption).  
ADGM – depends on the circumstances (if a person can nevertheless demonstrate that the seal is reliable and appropriate for the purpose for which the electronic record was generated or communicated in light of the circumstances (including any relevant agreement between the parties) then it will be acceptable."

17. Agreements accepted by the other party online, by ticking a checkbox or by clicking on a button ("click on agreements")

Onshore - Depends on the circumstances (where reasonable to do so having regard to the factors set out in Article 19 of the Electronics Transactions Law), although widely used in practice in fields such as e-commerce.
DIFC – Likely (depends on the context and surrounding circumstances at the time of its creation, execution, or adoption).  
ADGM – depends on the circumstances (if a person can nevertheless demonstrate that the ticking of the checkbox is reliable and appropriate for the purpose in light of the circumstances (including any relevant agreement between the parties) then it will be acceptable.