Electronic Signature Laws & Regulations - Vietnam

Electronic and certificate-based digital signatures are common in Vietnam with the majority of Vietnamese enterprises using digital signatures within their organizations. Vietnamese law recognizes both electronic signatures and digital signatures as having the same level of enforceability and admissibility as a “wet signature”, provided they meet certain requirements. Generally, the level of enforceability/admissibility of digital signatures is higher than other types of electronic signatures.

The main legislation covering electronic signatures is the Law on E-transactions 2005. At a lower level, the use of electronic signatures is governed by some specialized Decrees and Circulars, referring to the Law on E-Transactions. The requirements for a valid electronic signature vary depending on whether the electronic signature is being used to replace a traditional “wet” signature or the seal of an organization.

When an electronic signature is being used to replace a “wet” signature; it must satisfy the following conditions:

• The method of creating the E-signature identifies the signer and indicates their approval of the contents of the data message;
• Such method is sufficiently reliable and appropriate for the purpose for which the data message was created and sent.

When an electronic signature is being used to replace the seal of an organization, it must satisfy the following conditions:

Conditions on creation:

• The electronic signature must be verified by a security verifying process agreed upon by the transacting parties;
• Electronic signature creation data is attached only to the signer in the context that such data are used;
• The data used to create the electronic signature is only controlled by the signer at the time of signing;
• All changes to an electronic signature after the time of signing are detectable; and
• All changes to the contents of the data message after the time of signing are detectable.

Conditions on security: The electronic signature must be certified by an electronic signature certification service provider.

Digital Signatures are governed by the Decree No. 130/2018/ND-CP, as well as other Decrees and Circulars. Digital signatures are defined as a subset of electronic signatures created by the transformation of a data message using asymmetric cryptography.

Since digital signatures have been certified by certification authorities, the requirements for a valid digital signature only focus on the following security conditions:

1. The digital signatures are created during the valid period of the corresponding digital certificates and able to be checked by the public key recorded on such valid digital certificates.
2. The digital signatures are created by using the private key corresponding to public key recorded on digital certificates granted by certification authorities.
3. The private key is only under the control of the signer at the time of signing.

Digital signatures must be certified by a digital certificate granted by one of the following authorities: (i) VietNam National Root Certification Authority; (ii) Specialized certification authorities of the Government; (iii) Public certification authorities (listed on the website of Ministry of Information and Communications (MIC) in Vietnamese only); (iv) Specialized certification authorities of agencies and organizations issued with certificates of eligibility for special-use digital signature security.

Although there have been no publicly announced judgements on civil disputes or criminal offenses relating to E-signatures or digital signatures, Vietnamese courts and judges are quite familiar with the laws around electronic and digital signatures.

Special considerations

In Vietnam, there are certain use cases that limit use of electronic or digital signatures.

Transacting with public sector entities

There are no specific provisions on obligations and responsibilities for using digital signatures or electronic signatures with government entities.

Use cases that generally require a traditional signature

In Vietnam, there are several use cases that require a traditional signature and there are instances that require additional consideration for e-signatures’ legal compliance, such as when transacting with certain public sector entities. Additionally, notarization and certification of signatures and contracts in Vietnam cannot be replicated electronically. Thus, documents that must be notarized, or signatures or contracts that must be certified, cannot be signed or executed electronically. These are typically:

1. Wills

• A will made by a person who is incapacitated, or illiterate must be made in writing by a witness and must be notarized or certified.
• An oral will shall be deemed lawful only if the testator orally expressed his/her last wishes in front of at least two witnesses who immediately thereafter recorded those wishes in writing and signed or fingerprinted the document. Within five working days from the date on which the testator orally expressed his/her last wishes, such will must be notarized or certified by a notary or a competent agency.

2. Agreements for land, housing and real estate transaction

• Agreements on housing transactions, such as sale, giving, exchange, capital contribution, mortgage, lease or leasehold and/or amendments of such agreements are generally required to be notarized or certified.
• Contracts on transfer, giving, mortgage, lease, leasehold or capital contribution with land use rights or land use rights and assets attached to the land must be notarized or certified, except for real estate business cases.
• A gift of immoveable property must be recorded in writing and notarized or certified and must be registered if the law on immoveable property requires registration of ownership.

3. Other types of documents:

• Agreement on establishment of the matrimonial property regime must be made in writing before marriage and be notarized or certified.
• The selection of a guardian must be made in writing and notarized or certified.
• An auction document must clearly state the auction result and be signed by the auctioneer, the purchaser and two witnesses from among the auction participants and be notarized. Regarding auctioned goods which must be notarized by the State Notary according to the provisions of law, the auction document must also be notarized.
• The authorization for appeal (in legal proceedings) must be carried out under written authorizations that are lawfully notarized and certified, except for cases where such authorizations are formulated under the witness of the Judges or persons assigned by the Chief Justices.

There are also specific processes or workflows that cannot be replicated electronically, typically as follows:

Notarization: In this procedure, notarization requesters, witnesses and interpreters shall sign contracts or transactions in front of notaries.

Certification of signatures: After carrying out the examination of the papers or documents submitted for certification to find if they are adequate, to ensure requesters to be of sound mind, be conscious and able to control their behaviors at the time of certification, the certificating persons shall ask the requesters to sign their signatures in public and do the following:

• Fully write testimonies for certification of signatures according to the form as regulated;
• Sign and write full name, affix seal of the agency that performs certification and record it in the certification book.

Certification of contracts: Contracting parties must sign signatures in front of the certificating person. In case a competent person from a credit institution or enterprise has already had a specimen signature registered at the agency that performs certification, such person can sign his/her signature on the contract without the presence of the certificating person; the certificating person must check the signature on the contract against the specimen signature before certification is done. Upon finding any suspicion, the requester shall be requested to sign his signature in front of the certificating person.