New Regulations on E-Signatures (Vietnam)

E-signatures and Digital Signatures

While the terms “e-signatures” and “digital signatures” are normally used interchangeably, in practice, they are two different terms under LOET 2023. In particular, “e-signature” is defined under Article 3.11 of LOET 2023 to mean “a signature in the form of electronic data that is attached to or logically associated with a data message to identify the signatory and authenticate his/her approval for the data message”. Meanwhile, Article 3.12 of LOET 2023 defines “digital signature” as “an e-signature using asymmetric algorithm, consisting of a private key and a public key. The private key is used to insert the digital signature, and the public key is used to verify the digital signature. A digital signature ensures the authenticity, integrity and undeniability but does not ensure the secrecy of the data message.※1” Accordingly, digital signatures are a type of e-signatures which additionally satisfy certain technical requirements.

Three types of e-signatures

LOET 2005 did not provide any classification of e-signatures, while LOET 2023 classifies e-signatures into three types according to their use purposes as follows※2:

1. “Specialized e-signatures” (in Vietnamese: “chữ ký điện tử chuyên dùng”), which are e-signatures created and used by agencies and organizations especially for their operations, which are suitable to their functions and tasks;
2. “Public digital signatures” (in Vietnamese: “chữ ký số công cộng”), which are digital signatures used in public activities and secured by public digital signature certificates; and
3. “Public service digital signatures” (in Vietnamese: “chữ ký số chuyên dùng công vụ”), which are digital signatures used in public services and secured by public service digital signature certificates.※3

Legal validity of e-signatures

LOET 2023 explicitly stipulates that “Legal validity of e-signatures shall not be denied only because they are shown in the form of e-signatures”.※4 However, under LOET 2023, only (1) secured specialized e-signatures (in Vietnamese: “Chữ ký điện tử chuyên dùng bảo đảm an toàn”) and (2) digital signatures are stated to have legal validity equal to “wet-ink” signatures on paper.※5

Qualifications of a secured specialized e-signatures

Specialized e-signatures

An e-signature is considered a specialized e-signature if it satisfies the following conditions※6:

1. Being capable of authenticating the signatory and his/her approval of the data message;
2. E-signature creation data is only associated with contents of approved data message;
3. E-signature creation data is only subject to the control of the signatory at the time of signing; and
4. The validity of specialized e-signature may be verified according to conditions agreed by the parties.

Secured specialized e-signatures

A secured specialized e-signature is a specialized e-signature certified by Ministry of Information and Communications (“MIC”) as a secured specialized e-signature※7. The specific procedures to obtain this certification are subject to detailed guidelines to be promulgated by the Government.

Qualifications of a digital signature

An e-signature is considered as a digital signature if it satisfies the following conditions※8:

1. Being capable of authenticating the signatory and his/her approval of the data message;
2. Digital signature creation data is only associated with contents of approved data message;
3. Digital signature creation data is only subject to the control of the signatory at the time of signing;
4. All changes to the data message after the time of signing are detectable;
5. The signature must be secured by a digital signature certificate, which is issued by a qualified service provider; and
6. Signature creation device can ensure that (a) digital signature generation data must remain confidential and cannot be collected and used for the purposes of forging the signatures; and (b) digital signature generation data is designed to be used only once and does not affect the data to be signed.

Foreign E-Signature

According to LOET 2023, entities which are entitled to use a foreign e-signature (“Entitled Persons”) consist of※9:

1. Foreign organizations and individuals; and
2. Vietnamese organizations and individuals who have the demands to be involved in e-transactions with foreign organizations and individuals, but e-signatures and e-certificates provided by Vietnamese provider have not been recognized in such a foreign jurisdiction.

LOET 2023 also provides conditions for recognition of a foreign e-signature and a foreign e-certificate to be recognized in Vietnam as follows※10:

1. The foreign e-signature and foreign e-certificate shall comply with technical regulations and standards on e-signature and e-certificate under Vietnamese law, recognized international standards and international treaties to which Vietnam is a party; and
2. Foreign e-certificate is created based on adequate and verified identity information of foreign entities and individuals.

In addition, to use a foreign signature and foreign certificate, an Entitled Person shall carry out procedures for recognizing the foreign e-signature and foreign e-certificate at MIC※11.

However, LOET 2023 does not provide any definition of “foreign e-signatures”, so at this stage, it is unclear as to what may be regarded as “foreign e-signatures”. From the regulations of LOET 2023 on “Entitled Persons” (as discussed above), a reasonable interpretation could be that e-signatures authenticated by a foreign service provider, such as DocuSign, are regarded as foreign e-signatures. If this is the case, e-signatures created by using DocuSign and other e-signatures authenticated by a foreign service provider would only be recognized under LOET 2023 if the relevant procedures for recognition of these e-signatures are carried out with MIC.

Transitional provisions

E-transactions which have been initiated but not have been completely performed by the effective date of LOET 2023 (i.e., 1 July 2024) shall continue complying the provisions of LOET 2005 and its implementing legislation, unless the parties agree to apply regulations of LOET 2023.

Conclusion

To conclude, LOET 2023 introduces certain new concepts and stringent regulations on e-signatures. Accordingly, it is notable that entities who wish to use e-signatures in transactions in Vietnam should carefully observe the provisions of LOET 2023 to ensure the legal validity of these transactions.