Due to the rapid use of modern information technologies in business activity and the advantages related to their use, the conclusion of contracts in electronic form by business entities is widely used nowadays. However, numerous questions arise regarding the way of concluding such contracts and the requirements for them. Thus, according to the legislation of Belarus, a foreign economic deal is considered invalid in case of violation of the requirements for the written form of a foreign economic deal when the contract is concluded in electronic form. That is why both Belarusian residents and non-resident counterparties are interested in complying with the written form of a foreign economic deal.
In Belarus, a simple written form of a deal is considered to be observed when a contract is concluded either on paper or in electronic form, including in the form of an electronic document. However, neither the concept of a document in electronic form nor an electronic document are defined in the Civil Code of the Republic of Belarus (hereinafter - the CC).
The legal definition of an electronic document is given in the Art. 1 of the Law of the Republic of Belarus of December 28, 2009 No. 113-З 'On Electronic Document and Electronic Digital Signature' (hereinafter - the Law on Electronic Document and EDS): electronic document - a document in electronic form with the details allowing to establish its integrity and authenticity, which are confirmed by the application of certified means of electronic digital signature (hereinafter – the EDS) with the use of public keys of the organization or individual(s) who signed the document when verifying the EDS.
Therefore, an electronic document is one of the variants of a document in electronic form. A distinctive feature of an electronic document is its signing by the EDS in accordance with the requirements of the Law on Electronic Document and EDS.
However, when concluding contracts in electronic form with foreign companies, a problem related to the impossibility of using the EDS for signing such contracts arises. According to the requirement of Art. 30 of the Law on Electronic Document and EDS there is a need to recognize a foreign public key certificate. A foreign public key certificate may be recognized based on an international treaty concluded by the Republic of Belarus providing for mutual recognition of public key certificates or by establishing trust in it by a trusted third party.
Thus, at the moment active work is being done to solve this problem in electronic document interchange with residents of Russia. As a result, the Agreement between the Government of the Republic of Belarus and the Government of the Russian Federation on the Procedure for Recognition of the EDS in an electronic document during cross-border electronic interaction (hereinafter – the Agreement) was signed on April 15, 2024. The Agreement provides the basis for electronic document flow between Belarusian and Russian business entities, including the signing of contracts using the EDS. The Agreement enters into force from the date of receipt of the last written notification of the Parties' fulfillment of the necessary domestic procedures.
At the moment, it has already become possible to transmit and receive electronic transport (shipping) and other documents confirming the movement of goods in mutual trade between Belarus and Russia, as well as to recognize the EDS in such documents through a national operator of a trusted third party.
The CC establishes the following ways of concluding a contract in electronic form, including in the form of an electronic document:
1) by drawing up a single text document (clause 2 of Art. 404 of the CC);
2) by the exchange of text documents (clause 2 of Art. 404 of the CC);
3) by sending a text document and accepting an offer to conclude a contract through the performance of implied actions by the other party (clause 3 of Art. 404 of the СС).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.