The globalization of the startup ecosystem, along with the selection of digital tools that allow members of a company to work at distance (Google Apps for Work,Trello, Slack, just to name a few), often generates a dispersion of team members at global level. Unlike 20 years ago, a startup today can operate without a prefixed physical location and be managed by its founders and collaborators from different parts of a country or even the world.

From a legal point of view, the virtual reality in which companies operate, requires a regulation that does not obstruct the dynamism and operativity but rather facilitates the use of tools, such as the electronic signature, that enables the realization of operations and the reaching of agreements that impact the functioning of the company, in real time and at a transnational level. Employment contracts, service contracts, financial operations, mentoring contracts, directories, including the company’s management, more and more often are embodied in electronic documents. To give just one example, the already analyzed system “Companies in one day” (Empresas en un dia), operates on this principle.

This is how different countries and organisms at regional and international levels, have begun legislating on electronic transactions. For example, with regards to international commercial transactions, the US Electronic Signature in Global and National Commerce Act of 2000 (ESIGN) has recognized the legal validity of electronic signatures and documents. In the same way, the European Parliament and the Council of the European Union have adopted the Regulation 910/2014, concerning the electronic identification and the confidence services in the electronic transactions within the interior market, in order to facilitate electronic transactions and allow companies to operate without bureaucratic or cross-border barriers.

On the other hand, the United Nations Commission on International Trade Law (UNCITRAL) has implemented a model law for States to incorporate in their internal legislation, in compliance with the principles of technological neutrality, functional equivalence and autonomy of the will.

What about Chile? In 2002, Law 19.799 on “Electronic signature, electronic document and certification services” was promulgated, differentiating between the Simple electronic signature and the Advanced electronic signature and defining, among others, its use and functioning of the service providers.

One of the most complex issues here concerns the coordination of the so-called remote directories. Generally, the man hours of a director or board member is expensive, which makes it necessary to be as efficient as possible. In this sense, the remote appearance and the electronic signature of the acts are 2 tools that facilitate this work. In accordance with Law 19.799 and article 48 of the Corporations Act (Law 18.046), the directory of a company can sign the acts with electronic signature. What’s more, with regards to the acts or agreements adopted during the directory session, in its last subparagraph, the mentioned article 48 disposes that “The Superintendence can authorise, with a general rule, that societies under its control can adopt for these purposes the mechanisms that permit the use of the electronic signature and other technological means that allow to verify the identity of who signs”.
The opportunity of using this electronic mechanism speeds up the directory sessions, allowing its members to participate virtually or at distance and to sign the documents adopted. In this sense, in accordance to article 47 paragraph 5 of the Law 18.046 regarding Stock Corporations and the Circular N.1.530 of the Superintendence of Securities and Insurance, the remote assistance and participation of the directors to the Directory is permitted via technological means approved by this. It is worth mentioning that these laws can apply to other types of societies, like the joint-stock company, if its members agree so. For a company, relying on these tools implies providing the directory with the opportunity of undertaking different procedures of distinct nature without the necessity of coinciding simultaneously in the same place. The benefits in terms of time, opportunity, costs and efficiency are countless.

Giorgia Vulcano, Lawyer

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