There are limited numbers of cases to draw on regarding signatures.

In the space of a little over a month, remote working has, for many, become the new normal, bringing with it many benefits, and challenges. It is in this context that the recent clarification from the Lord Chancellor – which predated the extent of the COVID-19 outbreak becoming apparent – as to the validity of electronic signatures as a matter of English law came at so pertinent a time.

The Lord Chancellor and Secretary of State for Justice, Robert Buckland QC, recently confirmed, in the Government's response to the Law Commission's detailed report from last year, that electronically-executed documents are legally valid as a matter of English law, even in the context of statutory requirements that predate the digital age.

The statement, issued in early March, offers welcome – and long-awaited –  confirmation of the position in an area which, notwithstanding the broad consensus in the legal world, has, over recent years, caused some uncertainty in the commercial world.

As digital functionality continues to evolve at a staggering pace, and particularly in the current environment in which physical interactions are so limited, the ability to execute commercial contracts and other legal instruments electronically – with the logistical, time and cost efficiencies that this entails – is already a prevalent feature of many businesses (the concept of virtual closing of deals is widely recognised and used in some quarters).

However, uncertainty is often, indeed usually, an enemy of the commercial world, and the absence of clarity with regard to the enforceability of electronic signatures has, anecdotally at least, played a role in discouraging certain businesses from relying on this means of executing documents, particularly where deeds are involved, or where there is a cross-jurisdictional aspect to the matter in question.

Somewhat surprisingly, given the evident significance of these matters to the business world, the issue of electronic signatures has not, thus far, been litigated to the extent one might expect. A number of English cases over recent years have considered electronic signatures, but the principal focus has usually been what in fact constitutes such a signature.

Back in 2012, for example, the Court of Appeal grappled with the requirements of section 4 of the Statute of Frauds in the digital age, holding that if a person puts their name to an email and indicates that the email comes with that person's authority, and that the person takes responsibility for its content, the signature requirement under the Statute of Frauds will be satisfied.

The absence of a single, codified, statement of the law with regard to electronic signatures – reflecting the fact that the law has developed over time and from different sources – has contributed to the uncertainty. While the UK's Electronic Communications Act 2000 provides that an electronic signature cannot be denied legal validity on the sole basis that it is electronic, it does not expressly provide for the validity of such signatures.

The Lord Chancellor's statement will go some way to alleviating concerns; in Mr Buckland's words, electronic signatures "are permissible and can be used in confidence in commercial and consumer documents". It should, however, be borne in mind that certain instruments, and corporate documents, may still require "wet ink" signatures.

Where one might expect there to be increased potential for significant disputes to emerge, however, is in the context of cross border transactions. UK-only transactions, and disputes, are increasingly rare, and the uncertainty attendant on the issue of electronically-signed documents increases as different jurisdictions become involved, and the absence of a uniformity of provisions – contained, variously, in statute, case law, and regulations – becomes clearer.

While contracts governed by, and potentially needing to be enforced under, English law should benefit from the certainty afforded by the Lord Chancellor's statement, international trading companies should be conscious of discrepancies in how different jurisdictions treat electronic signatures. While many popular governing law jurisdictions recognise electronic signatures in principle, it remains the case that there is not a uniform regime for electronic execution.

Notwithstanding the welcome additional certainty afforded by the Lord Chancellor's statement, at least with regard to the position as a matter of English law, there are residual uncertainties with which the Industry Working Group, called for by the Law Commission and endorsed by the Lord Chancellor, will need to grapple.

How can requirements for witnessed and attested signatures, for example in the case of deeds under the Law of Property (Miscellaneous Provisions) Act 1989, be satisfied (do deeds have any place in the modern world in any event?)? Should the physical presence of witnesses still be required? How can vulnerable groups be protected? Clearly, there is work to be done in this evolving area.

A further note of caution is that convenience can come at a cost. Just as the immediacy of emails has caused some to write (and later regret), in haste, what they would not commit to paper, so too must the potential be recognised for things to go wrong where, for example, busy executives "sign" a significant commercial contract on their smart phone without giving the document its due attention. Time will tell whether, and how, this may become an area of significant litigation risk.

James Whitaker is a partner at Mayer Brown