Electronic documents and arbitration in Belarus

Belarusian law started changing actively, adjusting to new technologies.

In 2019 the amendments to the Civil Code of the Republic of Belarus (hereinafter referred to as the Civil Code) and the Law of the Republic of Belarus "On Electronic Document and Electronic Digital Signature" entered into force. These changes specify the possibility of concluding contracts using an electronic digital signature (EDS), copies of electronic documents, etc.

At the same time, a rapid growth in the use of the EDS was noted. Exchanging of scanned documents by e-mail became common. Courts use e-mails for legal correspondence.

Belarusian arbitration institutions have also switched to using open-source remote communication software such as Skype, Zoom and Microsoft Teams. However, notifications of the parties about arbitration are still sent by regular mail (or when sending a motion paid by the applicant – by courier or express mail), arbitral awards are drawn up with the original signatures of the arbitrators, confirmation of the parties' powers and the exchange of documents are made in a traditional way.

Belarusian arbitration institutions and arbitral tribunals do not have their own platforms (software) that allow exchanging, storing and reviewing information, identifying participants in the process and their representatives, notifying parties, etc. Creation of such platforms are too expensive and time-consuming.

Some of these issues can be resolved by ordering third-party services, but their use is associated with the costs of the parties.

At the same time, the exchange of documents using electronic communications may meet the objections of the parties, for example, due to the concerns about the confidentiality of information. Sometimes such behavior is part of the procedural tactics of the party to the dispute.

However, the most significant are the regulatory constraints in the law.

For the analysis we will focus on three aspects:

• execution of an arbitration agreement;
• execution of an arbitral award;
• delivery of documents to the parties by the arbitration court.

Is it possible today to replace original arbitration agreements and arbitral awards with electronic documents?

Of all types of documents in electronic form Belarusian law distinguishes a so-called electronic document, which means the electronic document with details that allow establishing its integrity and authenticity, confirmed by certified electronic digital signatures.

According to Article 22 of the Law of the Republic of Belarus "On Electronic Document and Electronic Digital Signature", an electronic document is equated to a paper document signed with one's own hand and has the same legal force.

Article 161 of the Civil Code of the Republic of Belarus, which regulates the conclusion of contracts in a simple written form specifies that the EDS is an analogue of a handwritten signature.

The arbitration agreement is still an agreement. Therefore, in Belarus a written form of the arbitration agreement is considered to be observed by the exchange of electronic messages if they contain the EDS of the parties.

Why are these provisions important? They refer to the requirements of the Belarusian law for recognition and enforcement of an arbitral award, as well as the issuance of an executive document based on the award of an international arbitration located in Belarus.

According to Articles 246, 257 of the Economic Procedural Code of the Republic of Belarus, the court must be provided with:

• an original arbitration agreement or a duly certified copy thereof;
• a duly certified original foreign arbitral award or a duly certified copy thereof.

Obviously, the transfer of a document in electronic form as an application attachment may raise objections from the court. Technically, this is possible by attaching a data storage, for example, a flash card (memory card), etc. However, the existing insignificant practice available publicly shows that the courts want to see documents in ordinary paper form.

With respect to the documents with the EDS the law establishes special rules and directly indicates the possibility of creating their copies on paper. Literally, in the law this is called the "external presentation of an electronic document on paper".

Based on Articles 18-20 of the Law of the Republic of Belarus "On Electronic Document and Electronic Digital Signature", such a copy (external presentation) must be accepted by the Belarusian courts as a proper copy.

The situation is more complicated with such popular documents in electronic form as e-mail messages or scanned copies of original documents sent by e-mail. Formally, they may be rejected.

This is possible when the arbitration recognizes the existence of an arbitration agreement. For instance, as a result of exchange in the statement of claim and statement of defence. However, the original agreement with handwritten signatures is absent, which creates the risk of refusal to recognize the arbitral award by the Belarusian court in the future.

This is due to a certain lag in Belarusian law in the matters related to documents in electronic form.

All companies and individual entrepreneurs received the EDS for filing declarations to the tax offices and the Social Protection Fund. The EDS is issued by a state body – the "National Center for Electronic Services" RUE (NCES).

The EDS is used in electronic document management maintained both by the NCES and by a number of private companies. Using the EDS Belarusian companies and individual entrepreneurs can sign various contracts.

Also, the NCES issues the EDS to individuals having no status of an individual entrepreneur.

In addition, a number of mobile operators implement a so-called "mobile digital signature" service associated with a SIM-card.

However, the use of the EDS in international document circulation is problematic.

Foreign EDS are recognized in the territory of the Republic of Belarus in the cases and in the manner determined by an international treaty of the Republic of Belarus or by establishing trust in them by a trusted third party.

In accordance with the Protocol on Information and Communication Technologies and Information Interaction within the Eurasian Economic Union (Annex No. 3 to the Treaty on the EAEU), a trusted third party is an organization which in accordance with the legislation of the member States is endowed with the right to perform activity on verification of electronic digital signature in electronic documents at a fixed time in respect of a person who signed the electronic document.

According to the Edict of the President of the Republic of Belarus of 08 November 2011 No. 515 "On some issues of the development of the information society in the Republic of Belarus", the NCES is a national operator of a trusted third party.

Currently, it is possible to exchange electronic documents with the EDS with the Russian Federation and Kazakhstan, but there are some organizational and technical difficulties.

There is no such a possibility with other states.

The following aspects have to be noted as well. The EDS in visual terms is a set of different signs. There is a need in the software allowing to read the data about the person who signed the document: company, full name, electronic signature validity period, etc.

Visually, for example, it is impossible to check the EDS on a copy of an electronic document on paper.

Psychological aspects should be taken into consideration. Obviously, not all judges have dealt with electronic documents in their work and have experience and understanding of the EDS.

The above applies to arbitral awards.

There are no legal obstacles for signing an arbitral award of the Belarusian arbitration institution with the EDS of arbitrators. Especially, if all arbitrators are residing in Belarus and use the EDS issued in Belarus.

However, as indicated above, foreign arbitrators, except for the arbitrators from the Russian Federation and Kazakhstan, are not entitled to use foreign EDS in Belarus.

At the same time, there is a moment of inconsistency of law provisions.

For instance, this may lead to the difficulties in executing a copy of an arbitral award to apply to the court for its recognition.

Arbitrators are not employees of the arbitration institution. In theory it is possible to issue the EDS for arbitrators as the individuals relating to the employees of the arbitration institution. Although, this contradicts the essence of the relations between the arbitration institution and arbitrators. However, most likely the arbitrators will use personal EDS, that is, the EDS of individuals.

The following questions arise: is it possible to attribute such a document to a document produced by the arbitration institution? Is the arbitration institution entitled to make and, accordingly, certify the external presentation of such an arbitral award on paper?

According to Article 20 of the Law of the Republic of Belarus "On Electronic Document and Electronic Digital Signature", the form of external presentation of an electronic document on paper is certified by a company or individual entrepreneur created such an electronic document.

There is a reference provision that allows individuals to certify copies in cases provided by law. However, there is no corresponding provision for arbitration institutions.

The solution is to appeal to notaries or persons entitled to certify the form of external presentation of an electronic document on paper. However, it takes time and requires certain actions. The advantage of electronic document circulation is partially lost, particularly, the speed and the possibility to exchange documents without sending them by regular mail.

Establishing in law of the arbitral institutions' right to certify copies of documents signed by the arbitrators would be beneficial.

It is to be considered that each of the arbitrators has to obtain the EDS, connect to the appropriate services for the exchange of electronic documents, which requires finances and time for training in working with EDS, etc.

It should be taken into account that practice of executing arbitration decisions with the EDS has not been formed. Therefore, in order to apply to foreign courts for recognition and enforcement of the Belarusian arbitration institution award it is preferable to execute the award traditionally with the original signatures of the arbitrators.

According to Article V (1) (b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) recognition and enforcement of the award may be refused, if the party against whom the award is invoked was not given a proper notification of the appointment of the arbitrator or arbitration proceedings or was otherwise unable to present the case.

Article 30 of the Law of the Republic of Belarus "On International Arbitration Court (Tribunal)" allows only written notifications delivered to the recipient in person or at the location of its business, etc.

There is no law in Belarus directly and clearly recognizing admissibility of notifications by e-mail or other similar means.

Belarusian law is focused on the traditional understanding of place of residence, which is a physical object with a postal address (house, apartment, office, etc.)

Therefore, the law regulates the issues of notification by regular mail correspondence exclusively (telegraph, telefax). For instance: a proper notification, delivery time of correspondence, the consequences of the refusal to receive, etc.

Notifications by e-mail or other electronic means of communication (e.g. SMS) are not regulated by law.

As a result, there is a risk of objections due to inappropriate notification by the other party. The method itself can be used purely in addition to the basic notification by regular mail and can speed up the informing of the parties to the case.

In the light of the above, Belarusian courts are actively switching to electronic notifications in relations with companies and individuals in Belarus.

A similar question has repeatedly arisen in the work of Belarusian economic courts. The Economic Procedural Code of the Republic of Belarus (Article 140) allows notification of the participants in the process by means of a telephone message, telegram, facsimile communication, Internet, including e-mail. At the same time, to exclude disputes about proper notification the courts invite the parties to submit written consents to the notifications by e-mail or SMS. The parties shall be notified in writing about the first preliminary hearing.

For these reasons, a written notice by regular mail is preferred for the arbitration proceedings.