Electronic signatures are not common in Kuwait. However, Kuwait’s government is actively restructuring operational mechanisms to promote electronic transactions and improve their online presence. In Kuwait, the use of electronic signatures is regulated by Law No.20 of 2014 concerning Electronic Transactions and its Implementing Regulations (“E-Commerce Law”) which is well understood by courts and judges. The E-Commerce Law creates a general presumption that an electronic signature has the same level of enforceability and admissibility as a “wet” signature, if the electronic signature meets the E-Commerce Law’s requirements for validity and no exemptions apply. These requirements are:
- it is possible to identify the signatory;
- the signature is linked solely to the signatory;
- the signature can be implemented using a safe signing device that is solely under the signatory's control at the time of signature;
- it is possible to reveal any change in the data linked with the protected signature or in relation to the data and the signatory.
The E-Commerce Law requires that client data relating to positional affairs, personal status, health status or elements of the financial disclosure of persons or other personal information must be retained privately and confidentially, and that employees are obliged to ensure such data protection. The disclosure of this data is subject to obtaining client consent or pursuant to a court order. As a result, entities collecting the above data are advised to ensure that the data:
- is only used for the purpose for which it has been collected
- is correct and updated regularly and
- is sufficiently protected from loss or disclosure.
It is unclear at this stage whether the “personal data” referred to in the E-Commerce Law relates solely to individuals or also extends to corporate entities.
In Kuwait there are certain use cases that limit use of electronic or digital signatures. The E-Commerce Law specifically excludes the following from the scope of its application:
- transactions and issues related to personal status, endowment, and wills;
- real estate title deeds and the resulting original or consequential real rights;
- promissory notes and negotiable bills of exchange; and
- any event that the law requires to be expressed in a written document or to be documented or the making of which is subject to a specific provision of another law.
All of the above documents require attendance before a notary, which cannot be carried out electronically. Similarly, witnessing also requires physically appearing and signing before relevant government personnel, and so cannot be carried out electronically.
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