Borrowed time for deeds?
The Industry Working Group on Electronic Execution of Documents published its Final Report earlier this year. This follows its Interim Report which was published early in 2022. One of the points raised by the Final Report was whether the concept of deeds is a thing of the past, although the Industry Working Group concluded that taking this further was outside of scope.
Together, the reports considered eight Terms of Reference in respect of electronic execution, with the Final Report focusing on fraud and cross-border transactions, while also reiterating the main conclusions of the Interim Report.
Electronic signing platforms were considered a positive by the Industry Working Group in reducing the risk of fraud. Records of the entire execution process, including any advice given, can be easily kept and used in evidence, processes can be put in place thereby reducing the potential for defective execution (especially where legal advice has not been taken) and time limits can be set up for completion of the execution process, so that inaction = no execution, reducing the possibility of coercion and duress.
In the context of cross-border transactions, the Final Report points out that the use of electronic execution can result in additional cost, delay and uncertainty, primarily because there is no standardised international “e-signature code” but instead a myriad of different laws and formalities which apply on a jurisdiction by jurisdiction basis. The Final Report suggests that adherence to an international “norm”, such as the UNCITRAL Model Law on Electronic Signatures, would alleviate these issues.
Along similar lines, the Final Report also considers whether the concept of deeds, or at least some of their current requirements, should be abolished in the UK. This may well make many English lawyers baulk – deeds have, after all, been around for centuries – but doing away with them would greatly simplify the execution process and many wouldn’t mourn their passing on the basis that deeds are an archaic concept, no longer required in a globalised business world. Whether this particular gauntlet will be taken up by the Law Commission, as suggested by the Industry Working Group, is one to watch, but in the meantime, place your votes on the demise of deeds now…
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https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1142597/electronic-execution-documents-iwg-final-report.pdf