In order to be able to keep them informed and updated on legal issues and matters of national interest, we make a brief review of the forms of commercial communication and remote contracting, as an alternative to mobility restrictions, both in the transfer of people and some means of transportation derived from the situation of the Covid-19, within the national territory as well as abroad, aiming to give them alternatives to the continuity of business and commerce in the different industries.
Remote corporate communication.
In 2017, through Decree 18-2017, modifications to the Commercial Code were established, where among other modifications, the respective resolutions of the administrative bodies were established, regarding participation or decision-making in assemblies, boards, administrative sessions, the sending of calls and any other communication between the partners, and between them and the mercantile company, may be carried out by any method of remote communication, as long as this is established in the articles of incorporation. If technologies that allow remote communication are used, it will be considered that the act occurred in the place where the company has its domicile, for this purpose electronic communication, video conferences and even applications on mobile devices could be used. For the validity of any distance communication, the articles of incorporation may determine mechanisms according to national legislation, or any other to ensure the authenticity and integrity of your communications.
Civil and commercial remote contracting
Regarding contracting by electronic or remote means, it can be concluded that according to national legislation there are a couple of options for this purpose, as a first alternative we have the option of generating agreements or contracts, which are made specifically through private documents, and that they do not require a special formality or solemnity, such as formalizing them through a public deed, so it is valid that the documents can be documented and signed in duplicates, signed in different places or territories, so that they can later be sent and exchanged in original by some means of transport, so that each of both parties have a signed original version, and in case it is required to have the legalization of signatures, they could be subsequently recognized before a Notary in the territory where they are.
There is also an important alternative, and taking into account Decree Number 47-2008 called “Law for the Recognition of Communications and Electronic Signatures”, contracting and communication by digital means, which is applicable to all types of electronic communication, transaction and / or legal act, whether public or private, whether national or international.
This regulation establishes procedures that allow these acts or contracts to be validly celebrated by both parties, even if they are located in different places or territories. In transactions and acts carried out exclusively between private subjects, especially in commercial and international trade matters, and that do not affect the rights of third parties, the parties may agree on the application of the mechanisms provided for in this law, or any other alternatives they wish to ensure the authenticity and integrity of their electronic communications.
According to this Law, electronic communications will be admissible as means of evidence, and no efficacy, validity or compulsory and / or probative force will be denied in all administrative, judicial or private actions to all types of information in the form of electronic communication, for the sole purpose of fact that it is an electronic communication, not because it was not presented in its original form. The proposed terms and conditions (offer) via email and their acceptance (consent) are considered valid and enforceable contract. And in accordance with these regulations, for the execution of a contract, the offer and its respective acceptance, where the will of both parties is reflected, can be expressed through one or more electronic communications; likewise, a contract concluded in this way will be valid and have binding force between the parties.
For the effectiveness of electronic communications or contracting, it must be done through the electronic signature, or the advanced electronic signature (which may be certified by an entity providing certification services), duly registered with the Registry of Service Providers Certification Office of MINECO, which is the body designated by the State for the authorization and registration of certification service providers; also that it has been produced.
Therefore, for the implementation of an advanced electronic signature it is necessary to use an electronic certificate, issued by a certification service provider, as well as a secure accredited signature creation device, and must have the respective service.
Within the minimum requirements for the implementation of the advanced electronic signature, the following attributes must be incorporated:
a) That the signature creation data, in the context in which they are used, correspond exclusively to the signatory.
b) That the signature creation data was, at the time of signing, under the sole control of the signatory.
c) That it is possible to detect any alteration of the electronic signature made after the moment of signature.
d) When one of the objectives of the legal requirement of the firm is to provide assurances regarding the integrity of the information to which it corresponds, that it be possible to detect any alteration of that information made after the moment of the signature.
The certification societies will have the obligation to issue certificates as requested or agreed with the signer, implement security systems to guarantee the issuance and creation of advanced electronic signatures, the preservation and filing of certificates and documents in support of data messages. , among others.
If you have any questions or want the information to be expanded, we are at your service at alopez@latinalliance.co