Guest post by Andrea Garcia Camps, associate at Jiménez Peña, Dominican Republic.
In the Dominican Republic, digital signatures are governed by (i) Law 126-02 on Electronic Commerce, Documents and Digital Signatures, dated September 4, 2002; (ii) Decree 335-03, dated April 8, 2003, which creates the Application Regulation of Law 126-02;, and (iii) Resolution 071-19, issued by the Board of Directors of the Dominican Telecommunications Institute (INDOTEL)), dated September 11, 2019.
Law 126-02 establishes the legal recognition of digital documents indicating that “legal effects, validity or binding force will not be denied to any type of information for the reason that it is in the form of digital document.” That said, consent to an agreement may be provided through electronic or digital means and scanned, faxed and electronic or digital signatures are valid and enforceable, as well as click-through agreements.
As such, any requirement by law or statute to provide documents in writing is met by electronic documents and any requirement of a manuscript or wet signature can be complied by a digital signature in the manner provided by Law 126-02, Decree 335-03, and Resolution 071-19.
Law 126-02 defines the digital signature as follows: “A numerical value that adheres to a data message and that, using a known mathematical procedure, linked to the initiator key and the text of the message, allows determining that this value has been obtained exclusively with the initiator key and the text of the message, and that the initial message has not been modified after transmission.”
As per the provisions of article 31 of Law 126-02, for a digital signature to have the same effects of a manuscript or wet signature, the following requirements shall be met:
- That the signature is unique to the person who uses it.
- That it is susceptible of being verified.
- That it is under the exclusive control of the person who uses it.
- That it is linked to the information, digital document or message to which it is associated, in such a way that if they are changed, the digital signature is invalidated.
- That it is in accordance with the regulations adopted by the Executive Power (i.e., Decree 335-03).
Likewise, article 32 of the aforementioned law provides that “a secure digital signature is one that can be verified in accordance with a security procedure system that complies with the guidelines outlined by this law and its regulations,” and article 8 of Resolution 071-19 adds that the secure digital signature is one that is created using a qualified electronic signature creation device and that is based on a qualified electronic signature certificate (ie, digital certificate).
The foregoing is complemented by Decree 335-03, which provides that the digital signature must be registered before a Certification Entity duly authorized by INDOTEL. The objective of the Certification Entities is to perform digital signature services, both in the creation and registration of digital signatures and in verifying their authenticity. Currently, the Chamber of Commerce and Production of Santo Domingo, the Presidential Office of Information and Communication Technologies (OPTIC) and Avansi, S.R.L. are the only Certification Entities that have been authorized by INDOTEL. However, there are several entities, both public and private, that have been authorized to operate as Registration Units affiliated with one of these Certification Entities.
Electronic documents have taken a significant role in current transactions, allowing parties settled in different locations to enter agreements and establish more frequent commercial relationships. However, keeping in mind that disputes may arise from such transactions, the parties must comply with the above-mentioned provisions for Dominican courts to recognize and enforce agreements and other documents entered into by electronic or digital means. Notably, electronic documents filed as evidence must be presented without alteration.