Businesses are operating in a covid-19 era when normal service, both figuratively and literally, have been suspended – in some cases, for good. Electronic service of legal documents and proceedings has slowly been modernised and the pandemic has precipitated further changes. The award-winning commercial lawyers at Bahamas law firm ParrisWhittaker advise businesses in their legal processes and when disputes arise.
Signing documents, already permissible, has also become more frequently utilised out of necessity when social distancing and other covid-19 restrictions have been in place for so long.
Electronic signatures – Traditionally, the general legal rule was that legal deeds had to be signed in ‘wet ink’ to be legally valid. Electronic signatures have been valid in The Bahamas since 2003, so long as the signatory’s identity and the legal intention to sign are ascertainable, wills and trusts, conveyances and property and court orders and notices (among other things) were excluded.
There have been temporary relaxations of the rules in other countries, including in England and Wales where wills can now be signed and witnessed digitally, but that has not yet been replicated in The Bahamas. The usual pre-covid rules still apply and if you have any doubts about those rules, get in touch with our specialist lawyers.
Electronic service of documents – Electronic service of court proceedings and notices was not generally acceptable until relatively recent, but the courts are increasingly allowing service to be effected via social media channels. Such channels of choice and expediency include Twitter and Facebook, WhatsApp and, of course, email or even through a website contact form.
But sometimes, even social media doesn’t serve that purposes. In a 2019 case1 in the UK, for instance, the court dispensed with service where the claimant had tried many times to tell the defendant about legal proceedings via Facebook, Flickr and the internet.
Smart contracts are worth a mention here. Smart (blockchain-based) contracts are now legally enforceable in England and Wales, which means they should also be treated as enforceable in The Bahamas. Though smart contracts are in their relevant infancy, technology move at pace and it may not be long before they become an inherent element in commercial practice.
Things to watch out for
With any digital process and transaction comes risks, and businesses and their lawyers need to remain alert to those risks. For instance, one ‘party’ could argue that a document has been fraudulently signed, or attempt to renege on a deal by claiming they had not intended to entering into or creating a legally binding contract.
We advise any clients relying on digital signatures to ensure discussions are held before the signings are recorded in writing to avoid the risk of disputes.
In corporate transactions, company representatives should refer to their articles of association to ensure they permit electronic signature and execution, otherwise it may be invalid. And if it is permitted, who is authorised to digitally sign documents and deeds?
Finally, where digital signings, executions and service of proceedings are effected, always keep contemporaneous records of what happened and who was involved and circulate it – along with copies of the relevant document – to the parties.
How can we help?
We advise and represent companies and other business clients in their business relationships and in commercial disputes. It is important to take early advice from the experts rather than risk an expensive dispute later. Contact the experienced commercial disputes lawyers at ParrisWhittaker for robust assistance and representation.
1Lonestar Communications Corp LLC v Kaye[2019] EWHC 200
