The Covid-19 pandemic that is currently shaking the planet has forced states to take restrictive measures in order to curb its spread.
These measures, which are as vital as they are essential for the prevention of this disease, affect the finalization of trade agreements in an unprecedented way, especially when it comes to international operations. Whether contracts for the international sale of goods, merger / acquisition transactions, financing agreements or joint ventures, no type of business contracts is spared the difficulties related to the health crisis.
Between rupture or suspension of negotiations, interruption of rating, difficulties in lifting conditions precedent, there is implicitly the problem of formalizing signing.
Indeed, signing is presented as the final phase of negotiations, often marked by a strong solemnity following the physical signature by all the co-contractors of all the contractual documentation [1].
However, the meeting of the co-contractors in one and the same place to solemnly finalize the agreement, by the handwritten signature of the documents is made difficult because of the need to respect the restrictive measures dictated by the health context.
In this regard, recourse to electronic signature appears to be the best alternative Indeed, article 4 of Cameroonian law n ° 2010/012 of December 21, 2010 relating to cybersecurity and cybercrime defines the electronic signature as the 'signature obtained by an asymmetric encryption algorithm making it possible to authenticate the sender of a message and verify its integrity'. For the OHADA legislator, it is of equal value to the handwritten signature subject to compliance with a reliable technical process, which guarantees, at all times, the origin of the document in electronic form and its integrity during processing and electronic transmissions [2].
It must be a qualified signature [3], which, when applied to a digital document, makes it possible to materialize the signatory's consent to the obligations arising therefrom.
It must have the following characteristics:
· Be attached to the signatory;
· Allow the appropriate identification of the signatory;
· Be created by means that the signatory can keep under his exclusive control;
· Be linked to the document to which it relates in such a way that any subsequent modification of the document is detectable.
The qualified electronic signature contains essential technical components such as signature creation software, signature verification software and electronic certificate. The electronic certificate is issued by an electronic certification service provider approved by the National Agency for Information and Communication Technologies [4] (ANTIC). It aims to ensure the authentication of the signatory, to attest to the completion of the transaction and to set the date and time.
The electronic signature should not be confused with the scanned signature. Indeed, the latter takes the form of a handwritten signature which has subsequently been scanned for the needs of the cause [5]. It is simply a scanned image of the handwritten signature that does not allow true authentication of the signer and guarantee of their consent to the content of the document.
It emerges from the above that the qualified electronic signature, crowned with a compliant electronic certificate, has the same legal value as the handwritten signature.
However, the electronic signature, even qualified, does not grant the document the quality of an authentic instrument since it must for this purpose be collected by a notary. Any document signed electronically therefore remains a private deed as long as it is not registered in a notarial directory. We can see behind the scenes the difficulties inherent in private deeds, particularly in terms of the constitution of certain securities or in the context of litigation following the questioning of the consent of a party.
In Cameroon, unfortunately, in the current state of positive law, there is no substantive legal framework relating to the intervention of the notarial office in the establishment of deeds on electronic media [6]. It would therefore be difficult to foresee the possibility for the acting notary to collect electronic signatures directly, especially since most local notarial offices do not have the necessary logistics in this matter.
The appropriate solution therefore remains the registration with a notary of the document signed electronically for the purposes of its authentication. In this regard, the agreement must necessarily contain a "powers for formalities" clause, by which the parties will mandate the bearer of a copy to complete the registration formalities with the notary. As the parties do not have the possibility of being present at the notary, the deed of deposit duly drawn up by him will be signed by the agent with all the legal effects that result therefrom. The agreement then authenticated and annexed to the deed of deposit may acquire all the attributes of an authentic instrument.
The Covid-19 health crisis is certainly an opportunity for the Cameroonian legislator to integrate the establishment of notarial acts on electronic media into the normative system in force in order to guarantee the documents signed electronically, the authenticity granted to deeds drawn up by a notary.
In conclusion, the current health situation makes the electronic signature appear as an essential alternative for signing trade agreements precisely in the African context [7]. It must be qualified, that is to say, bring together all the essential technological components prescribed by OHADA and Cameroonian legislators. It must also present all assurances relating to the effective identification of the signatory. The deed will not be authentic until it has been filed with the notary for the purposes of authentication.
However, a difficulty persists regarding the accomplishment of the signing of international contracts by the use of qualified electronic signature when some of the co-contractors are installed abroad. In this case, it is not easy for all parties to ensure the compliance of the electronic certificates held by each [8], a situation which is likely to affect the validity of the operation.
References :
[1] Read in this regard, (J) FASSI-FEHRI, Legal guide to private equity in the OHADA space, LexisNexis 2018, n ° 426 et seq. The signature thus allows the parties to assume the legal consequences of the act they have taken (see Henri-Joël TAGUM FOMBENO, Negotiating and drafting as best as possible its contracts in the OHADA space, L'Harmattan 2010, pg 147 .
[2] Art 82 of the revised Uniform Act on General Commercial Law.
[3] Art 83 of the revised Uniform Act on General Commercial Law and 18 of Law No. 2010/012 of December 21, 2010 No. 2010/012 of December 21, 2010
[4] Art 4 of Decree No. 2012/1318 / PM of May 22, 2012 setting the conditions and modalities for granting the authorization to exercise the electronic certification activity.
[5] In this regard, the French Council of State considered that the simple digitization of a signature is characterized by an "absence of a reliable technical process guaranteeing the authenticity of this signature" (Council of State, July 17, 2013 , No. 351931).
[6] The notary intervenes both to verify the validity of the qualified electronic signature and its essential components (signature creation software, signature verification software, approved electronic certificate) as well as to complete the act by its signature which will have to be completed. - even be electronic. See in this sense French Decree No. 2005-973 of August 10, 2005 amending Decree No. 71-941 of November 26, 1971 relating to deeds drawn up by notaries.
[7] This would constitute a real guarantee of confidence in the field of the digital economy. Read in this direction DIFFO TCHUNKAM (J), Law of economic activities and electronic commerce: the spirit of general commercial law resulting from the reform of December 15, 2010, Harmattan 2011, n ° 42.
[8] In this regard, article 20 (1) of law n ° 2010/012 of December 21, 2010 relating to cybersecurity and cybercrime in Cameroon provides that: 'An electronic certificate issued outside the national territory produces the same legal effects that a qualified certificate issued in Cameroon provided that there is an act of recognition of the issuing authority signed by the Minister in charge of Telecommunications'.
Author:
Boris MINLO ENGUELE,
Legal Counsel
DH Avocats