How certain is the development of the ever-increasing use and application of electronic documents, especially in terms of legalization of documents for international legal transactions?
By adopting the Law on the electronic document, electronic identification, and trusted services in electronic business in 2017, the main function of which is digitalisation and digital business operations, questions were raised in regard to compliance of this law with practices that do not fully recognize the electronic documents and electronic business operations.
Although the legislator’s intentions were to facilitate and speed up the complicated bureaucratic process, due to a lack of harmonisation of regulations, so far, the competent state bodies are failing to implement modern practical solutions.
In our practical work, in several cases, first and foremost, questions arose regarding interpretation by state authorities as to what an electronic document actually represents and what is considered to be an electronic signature, all of these issues are mostly related to the documents issued by the state bodies. The Law on electronic documents, electronic identification, and trusted services in electronic business operations set forth that this document cannot be challenged in respect of validity, evidence, or written form, only because it exists in electronic form.
In case of international legal transactions, in a situation where legalization of the document is required for use in a foreign state, specifically, when diplomatic and consular legalization (the so-called “full legalization”) or legalization by apostille is required, the problem occurs when state authorities issue a document in the form of an electronic document, application of which is required in paper form. It is indisputable that in the case of legalization, the court that certifies the document does not assess the contents of the document, but only confirms the authenticity of the signature of the person who signed the document and the authenticity of the seal placed on the document. The problem that arises is that in practice, there is no consensus regarding certification of the printed copy of the electronic document.
Digitization and greater application of documents in digital form, which was confirmed during the current SARS-CoV-2 virus pandemic, raised questions about how a printed copy of the electronic document, which is actually a copy, can gain the legal quality of the original document.
Although the Law provides two solutions for the verification of a printed copy of an electronic document, either by a notary public or authorized person that acts as a registered entity, in practice, there is still no unity in respect of the application of these solutions and authorized persons occasionally do not meet their legal obligations envisaged by law.
Also, state authorities that issue documents in electronic form often apply a clause “valid without signature and stamp”, which is not in accordance with the Law on legalization of documents in international trade, since this Law, which does not recognize the electronic document, sets the condition that the documents must be printed, signed and stamped by the issuing authority.
That being said, it remains uncertain how this situation will develop in the future, given the ever-increasing use and application of electronic documents, especially in terms of legalization of documents for international legal transactions.
By Mirjana Milosevic, Senior Associate, and Luka Hajdukovic, Associate, JPM Jankovic Popovic Mitic