JOB/GC/115, JOB/CTG/3  
JOB/SERV/247, JOB/IP/20  
JOB/DEV/41  
21 December 2016  
(16-6995) Page: 1/5 
Gene ral Council  
Council for Trade in Goods  
Council for Trade in Services  
Council for Trade -Related Aspects of  
Intellectual Property Rights  
Committee on Trade and Development  Original: English  
 
  WORK PROGRAMME ON EL ECTRONIC COMMERCE  
ELECTRONIC SIGNATURE S 
Communication from Argentina, Brazil and Paraguay  
The following communication, dated 15 December  2016, is being circulated at the request of the 
delegation s of Argentina, Brazil and Paraguay.  
 
_______________  
 
 
1.1  Electronic signature (e -signature) encompasses a broad range of digital solutions aiming to 
ensure the authenticity, integrity and privacy of online domestic and cross -border transactions and 
communications. An electronic signature uses ele ctronic data to ascertain the identity of the 
sender of an email or the purchaser of an on -line service. In its basic format, an e -signature does 
not require an independent official third party for certification purposes.  
 
1.2  In its more sophisticated version , an electronic signature, known as advanced 
electronic  signature or digital signature, is based on an electronic file (an advanced digital 
certificate) that acts like a full digital identity, allowing safe and unequivocal identification of the 
author of a n electronic message or a digital transaction. The digital certificate must be issued by a 
trustable third party – an official or accredited Certification Authority -, which will associate any 
natural person or any juridical person to a pair of cryptograph ic keys. A digital certificate not only 
enables clear identification of a person in the World Wide Web, but also ensures legal validity of 
any digital action using it. Digital certificates are becoming a fundamental tool for e -commerce, 
electronic contract s, bank operations, e -government initiatives, among other usages. For instance, 
an email sent with a digital certificate ensures the identity of the sender and the integrity of the 
message, ascertaining that its content has not been violated in any way.  
 
1.3  The issue of e -signature and authentication has already been identified as a relevant issue in 
the discussions under the Work Programme on Electronic Commerce (documents JOB/GC/97/Rev.3 
and JOB/GC/98).  
 
1.4  In order to provide further input to the discussions, Argentina, Brazil and Paraguay would like 
to share with Members GMC Resolution 37/06, which deals with this issue within MERCOSUR. The 
co-sponsors are convinced that e -signature is a fundamental issue in any future consideration 
regarding electronic commer ce in the WTO.  
 JOB/GC/115 • JOB/CTG/3 • JOB/SERV/247 • JOB/IP/20 • JOB/DEV/41  
 
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  MERCOSUR (Resolution GMC 37/06 ) 
 
Article 1 – Scope of application  
 
The purpose of this Resolution is to recognize, subject to the conditions laid down hereunder, the 
legal value of electronic documents, of electronic signatures and advance d electronic signatures 
within MERCOSUR, thereby contributing to their utilization.  
 
These provisions do not apply to other aspects relating to the conclusion or validity of legal 
instruments where formal requirements are laid down in national laws, nor do  they affect the 
regulations and limits set forth in national legislation governing the use of documents.  
 
This Resolution does not authorize the free movement of digital certification services within 
MERCOSUR. For the provision of digital certification se rvices, the States Parties shall observe the 
disciplines set forth in the Protocol of Montevideo on Trade in Services in the MERCOSUR, and in 
their specific schedules of commitments.  
 
Article 2 – Principles  
 
The States Parties shall observe the following p rinciples:  
 
1. Operational autonomy and permanent coordination among national infrastructures;  
 
2. Interoperability based on international standards;  
 
3. Exchange between States Parties of digital information and documentation under safe 
technical conditio ns, with legal validity and probative value;  
 
4. Transparency in the management of digital certification;  
 
5. Neutral treatment by national laws of the different technologies used for the activities set 
forth in this Resolution in order to allow for adapta tion to the pace of technological 
development inherent in such activities (technology neutrality);  
 
6. Functional interpretation of the terms and concepts in order to ensure that a particular 
process or technology used by a State Party is not denied legal effect solely because it has 
been given a nomenclature different from that provided in this Resolution.  
 
Article 3 – Definitions  
 
For the purposes of this Resolution:  
 
(1) "Electronic signature"  shall mean data in electronic form attached to other electron ic data 
or logically associated with such data, used by the signatory as a means of identification.  
 
(2) "Advanced electronic signature"  shall mean an electronic signature which meets the 
following conditions:  
 
 (a) It requires information known only to th e signatory, so that the signatory can be 
 uniquely identified.  
 
 (b) It is created by means that the signatory can maintain under his/her sole control.  
 
 (c) It is verifiable by third parties.  
 
 (d) It is linked to the data signed therewith in such a way that any subsequent change in 
 the data is detectable.  
 
 (e) It is created using a signature creation device that is technically safe and reliable, and 
 is based on a certificate that is qualified and valid at the time of signing.  
 
(3) "Digital signature"  shall be used interchangeably with "advanced electronic signature".  JOB/GC/115 • JOB/C TG/3 • JOB/SERV/247 • JOB/IP/20 • JOB/DEV/41  
 
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(4) "Signatory"  shall mean a natural or legal person that legally uses an electronic signature 
creation device.  
 
(5) "Electronic document"  shall mean the digital representation of acts or   facts regardless 
of the medium to which they are affixed, or in which they are saved or stored.  
 
(6) "Digital document"  shall be used interchangeably with "electronic document".  
 
(7) "Digital certificate"  shall mean a digitally signed electronic document  that links signature 
verification data to the signatory and confirms the signatory's identity.  
 
(8) "Qualified certificate"  shall mean a digital certificate issued by an accredited service 
provider that meets the requirements laid down by national law.  
 
(9) "Advanced certificate"  shall be used interchangeably with "qualified certificate".  
 
(10) "Certification service provider"  shall mean the natural or legal person which, under 
national law, delivers certificates or provides other services relating to elec tronic signatures.  
 
Article 4 – Legal effects of electronic documents and electronic signatures  
 
The States Parties recognize that electronic documents meet the handwriting requirements. 
Consequently, in each one of the States Parties, electronic documents  shall have the same legal 
effects as written documents, subject to the exceptions provided for in national laws.  
 
The States Parties shall recognize the legal effects of electronic signatures where they are 
accepted as valid by the parties that use them o r accepted by the persons to whom the document 
to which they are linked was presented.  
 
The States Parties shall ensure that the evidentiary effects of an electronic document are not 
denied solely because it is not connected to an advanced electronic signa ture, if its authenticity 
and integrity can be unequivocally demonstrated.  
 
The parties shall be free to agree mutually on the conditions under which they will accept 
electronic signatures, in accordance with their national laws.  
 
Should one of the parties  not recognize an electronic signature, it shall be up to the other party to 
prove its validity.  
 
Article 5 – Advanced electronic signature: Mutual recognition  
 
In order to ensure mutual recognition of advanced electronic signatures and digital certificate s, the 
States Parties may conclude mutual recognition agreements with each other. The Common Market 
Group (GMC) shall adopt guidelines for that purpose. These guidelines shall reflect the state of 
affairs at the time of their adoption, and may be updated a t the proposal of Working Subgroup 
(SGT) No.  13 in order to keep pace with the related technological developments.  
 
Through mutual recognition agreements, advanced electronic signatures that meet the conditions 
set forth therein shall be accorded the same legal and probative value as is accorded to 
handwritten signatures.  
 
The States Parties shall recognize the authenticity and integrity of an electronic document signed 
with an advanced electronic signature, accepting it as documentary evidence in a court o f law in 
accordance with the provisions of the mutual recognition agreements.  
 
In the framework of SGT No.  13, the States Parties shall indicate which bodies are authorized to 
sign the mutual recognition agreement.  
 JOB/GC/115 • JOB/CTG/3 • JOB/SERV/247 • JOB/IP/20 • JOB/DEV/41  
 
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  Article 6 – Qualified digital certificat es 
 
The mutual recognition agreements shall establish the conditions under which digital certificates 
issued by a State Party to the agreement shall have the same legal validity in the other 
States  Parties to the Agreement.  
 
These conditions must require, at the minimum, that the digital certificates:  
 
(a) are issued by a certification service provider that is accredited under the national 
accreditation and control system provided for in Article 7;  
 
(b) respect the internationally recognized standard format s laid down by the implementing 
authority of each State Party;  
 
(c) meet the minimum criteria set forth in the guidelines mentioned in Article 5;  
 
(d) contain, at the minimum, sufficient data to:  
 
1. identify beyond doubt the owner and the certification se rvice provider that issued the 
certificate, indicating its period of validity and data by which its unique identity can be 
established;  
 
2. be verifiable in terms of revocation status;  
 
3. clearly differentiate between verified and unverified information i ncluded in the digital 
certificate;  
 
4. be able to verify the signature;  
 
5. identify the certification policy under which it was issued.  
 
Article 7 – Provision of certification services  
 
The States Parties shall not subject the provision of certification services to prior accreditation 
except in the case of those connected to an advanced electronic signature in accordance with the 
terms of this Resolution.  
 
The States Parties shall create a suitable accreditation and control system for certification servic e 
providers established in their respective territories that issue qualified certificates by which 
advanced electronic signatures can be verified.  
 
The States Parties may subject the use of electronic signatures and advanced electronic signatures 
in the pu blic sector to possible additional requirements. These requirements shall be objective, 
transparent, proportionate, and non -discriminatory, and shall relate only to the specific 
characteristics of the application concerned. These requirements shall not act  as an obstacle to 
cross-border services.  
 
Article 8 – Liability  
 
States Parties shall ensure, at the minimum, that a certification service provider accredited 
pursuant to Article 7 is liable for damage caused to any natural or legal person that had reason able 
confidence in the digital certificate issued by that provider with respect to the following:  
 
(a) all fields and data required by the respective national infrastructures for the qualified 
certificate are included and accurate at the time of issue;  
 
(b) at the time the qualified certificate is issued by the accredited certification service provider, 
the signature identified therein reflects the signature creation data corresponding to the 
verification data contained in the provider's qualified certifica te, in order to guarantee the 
chain of trust;  
 JOB/GC/115 • JOB/C TG/3 • JOB/SERV/247 • JOB/IP/20 • JOB/DEV/41  
 
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  (c) any errors or omissions in the said qualified certificates or failure to follow the certification 
procedures established in the mutual recognition agreements;  
 
(d) where appropriate, proper and timely regi stration of the revocation of the qualified 
certificates issued.  
 
It is up to the accredited certification service provider to demonstrate that it acted neither 
negligently nor intentionally.  
 
The States Parties shall ensure that the certification service provider accredited pursuant 
to Article  7 can indicate in a qualified certificate, in a manner that is identifiable by third parties, 
the limits of its utilization.  
 
The certification service provider accredited pursuant to Article 7 shall not be liable fo r damage 
resulting from the utilization of a qualified certificate it has issued if such utilization exceeds the 
scope defined in its certification policy, nor shall it be liable for any inaccuracies in the qualified 
certificate resulting from verified inf ormation supplied by the owner, provided the accredited 
certification service provider can demonstrate that it has complied with all the conditions set forth 
in its certification policies and procedures.  
 
Article 9 – Protection of personal data  
 
The States  Parties shall ensure that a certification service provider that issues qualified certificates 
for the public may only collect personal data directly from the person to which such data refer, 
after having obtained the express consent of that person and onl y to the extent that such data are 
necessary to issue and maintain the certificate. The data shall not be obtained or used for any 
other purpose without the express consent of the owner.  
 
The States Parties shall guarantee the confidentiality of the other personal data required to issue 
the qualified certificate that do not appear therein, in accordance with the terms of this article.  
 
__________