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Series 5 · Signatures around the world · 5.1

Two traditions: the open model and the tiered model.

Technology neutrality or graded presumptions: two paths and their consequences.

October 20266 min read

If you sort the world's electronic signature laws, two broad families emerge. One relies on the freedom of the parties and on the judge to weigh the evidence. The other establishes levels with legal effects defined by statute. Almost every country falls somewhere between the two, and understanding both ends of the spectrum lets you read any national framework in a few minutes.

The open model

The best known example is the United States. The federal ESIGN Act of 2000 and the Uniform Electronic Transactions Act (UETA), adopted by nearly every state, establish a simple principle: a signature or contract cannot be denied validity because it is electronic. They define no levels and require no particular technology. Any sound, symbol or process attached to a record and adopted with the intent to sign can be a signature.

The tiered model

The best known example is the European Union with eIDAS, and many laws in Latin America and Asia follow a similar logic. The law recognizes the simple electronic signature but also defines higher levels, with technical and supervisory requirements, and assigns them specific legal effects, such as equivalence with a handwritten signature or shifting the burden of proof.

Open modelTiered model
Central questionWas there an intent to sign?What level is the signature?
Role of the lawRemove obstacles.Define categories and effects.
Role of the judgeWeigh the evidence case by case.Apply presumptions according to the level.
Role of the StateMinimal.Accredit and supervise providers.
Typical riskWeak evidence for simple signatures.Requiring high levels where they are not needed.
One model trusts the evidence. The other trusts the category. The best systems end up asking for both.

Exceptions, in both worlds

Even the most open models exclude certain acts. Wills, certain family law matters, real estate titles and some notices usually require special formalities, whether paper, notarial involvement or a specific level of signature. When reviewing a country's framework, the list of exclusions matters as much as the general rule.

A practical convergence

In practice, the two models are drawing closer. In open countries, industry has adopted standard formats, timestamps and evidence records because the courts value them. In tiered countries, most everyday signatures are simple or advanced, and their weight depends on the evidence that accompanies them. The upshot is that good practice works in both worlds: choose the level according to the risk, and always document the evidence.

For cross border transactions

If a contract is signed between a company in a country with an open model and another in a country with a tiered model, it is worth asking which law governs it, where it could be litigated, and what level of signature that forum would require. Sometimes the simplest solution is to use the highest level both parties can reach, with complete evidence.

Key points

The open model, as in the United States, removes obstacles and leaves the assessment to the evidence. The tiered model, as with eIDAS, defines categories with legal effects and backs them with supervision. Both have exceptions, and both converge in practice: proportionality and evidence work under any framework.

Sources

  1. United States, ESIGN Act, Public Law 106 229, 2000
  2. Uniform Law Commission, Uniform Electronic Transactions Act, 1999
  3. Regulation (EU) No 910/2014, eIDAS

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Trust Notes

Articles for those who decide how an organization signs: principles, practices and criteria that hold up as rules and technologies change.

A publication of Signing Flows, by Interfase.

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