Guatemala has established a robust legal infrastructure for electronic commerce and digital transactions, primarily centred around the concept of “Functional Equivalence.” Under Guatemalan law, electronic signatures are not only recognized but are granted the same legal weight as handwritten signatures, provided they meet specific technical and legal criteria.
The system is governed by the Ministry of Economy through the Registry of Market Communications and Goods (Registro de Mercado de Valores y Mercancías), which oversees the Certification Service Providers (CSPs). Guatemala distinguishes between “Simple Electronic Signatures” and “Advanced Electronic Signatures,” with the latter providing the highest level of legal certainty and a presumption of non-repudiation in judicial proceedings.
Legal Framework
A. Decree No. 47-2008: Law of Information and Communications Recognition
This is the primary legislation governing e-signatures in Guatemala. It was designed to harmonize local laws with international standards, specifically the UNCITRAL Model Law on Electronic Signatures. Key principles include:
- i. Article 5 (Functional Equivalence): States that when the law requires a signature, that requirement is met by a data message if an electronic signature is used.
- ii. Article 7 (Legal Validity): Data messages cannot be denied legal effect, validity, or enforceability solely because they are in electronic form.
- iii. Article 33 (Advanced Electronic Signature): Defines the “Firma Electrónica Avanzada” (FEA) as a signature that is uniquely linked to the signatory, allows for their identification, is created using means under their sole control, and is linked to the data in a way that any subsequent change is detectable.
B. Government Agreement No. 135-2009 (Regulations to Decree 47-2008)
This regulation establishes the operational guidelines for Certification Service Providers. It outlines the process for accrediting entities that issue digital certificates, ensuring that the infrastructure supporting the FEA is secure and internationally compliant.
The Distinction: Simple vs. Advanced
i. Simple Electronic Signature: Any electronic data attached to or logically associated with a data message used to identify the signatory (e.g., a scanned signature, a typed name at the end of an email, or a click-wrap agreement). These are valid but do not enjoy a legal presumption of authorship if challenged.
ii. Advanced Electronic Signature (FEA): These require a digital certificate issued by an accredited provider. Under Article 33, the FEA has the same legal validity as a signature recognized before a Notary Public. This is the “Gold Standard” for high-stakes legal and commercial transactions in Guatemala.
Documents That Can Be Signed Electronically
The Guatemalan legal system is quite permissive regarding the use of data messages and electronic signatures for both private and administrative acts:
i. Commercial Contracts: Distribution agreements, sales contracts, and agency agreements.
ii. Corporate Governance: Minutes of Board of Directors meetings and shareholder resolutions can be signed using FEA.
iii. Employment Documentation: Labor contracts and payment receipts are increasingly handled electronically, provided the employee has access to the signed document.
iv. Tax Compliance: The Superintendency of Tax Administration (SAT) is a leader in e-signature adoption. Taxpayers use electronic signatures for “FEL” (Factura Electrónica en Línea) and other tax filings.
v. Financial Services: Loan agreements, credit card applications, and insurance policies are legally valid when signed electronically.
vi. Government Procurement: Bidding processes on the “Guatecompras” platform utilize electronic documentation.
Documents That Cannot Be Signed Electronically
While the law is broad, certain acts remain excluded from the electronic signature regime due to the “solemnity” required by the Civil Code and the Notarial Code of Guatemala:
1. Acts of Family Law: Marriage contracts, adoptions, and divorce settlements generally require physical presence and a wet-ink signature before a competent authority.
2. Mortgages and Real Estate Transfers: Under current Notarial practices, documents that must be recorded in the Property Registry (Registro General de la Propiedad) usually require a Public Deed (Escritura Pública). While the FEA is legally equivalent, the technical integration for Notaries to sign “Protocol” books digitally is still in a transitional phase.
3. Wills and Testamentary Acts: The Civil Code requires specific formalities for wills (such as being handwritten or signed in a physical protocol) that are currently incompatible with purely electronic formats.
4. Promissory Notes (Pagarés) and Checks: While electronic versions exist in some contexts, the “physicality” of negotiable instruments (Títulos de Crédito) is often still required for traditional summary judicial proceedings (Juicio Ejecutivo).
Notable Changes and Modernization
A. The COVID-19 Acceleration
The pandemic prompted a massive shift in the public sector. The “Ley de Simplificación de Requisitos y Trámites Administrativos” (Decree 5-2021) was passed to force government agencies to digitize their processes, explicitly mandating the acceptance of electronic signatures to reduce bureaucracy.
B. SAT and FEL (Factura Electrónica en Línea)
Guatemala has successfully implemented a mandatory electronic invoicing system (FEL). This system relies on digital certificates to sign every invoice issued in the country, creating a culture of digital trust that has trickled down to small and medium enterprises.
C. Judicial Branch Digitalization
The Guatemalan Judiciary (Organismo Judicial) has implemented electronic filing systems for certain types of litigation, allowing lawyers to submit briefs signed with an Advanced Electronic Signature, significantly speeding up the notification process.
Conclusion
Guatemala offers a high level of legal security for those using electronic signatures. For international businesses and local entities, the use of an Advanced Electronic Signature (FEA) is highly recommended, as it provides a legal “shortcut”—it is presumed authentic unless a challenger can prove otherwise. Simple electronic signatures remain useful for day-to-day operations but carry a higher evidentiary burden in court. As the Property Registry and Notarial protocols continue to modernize, it is expected that even the current “excluded” documents will eventually move toward a fully digital format.
Disclaimer
The information on this site is for general information purposes only and is not intended to serve as legal advice. Laws governing the subject matter may change quickly, so Flowmono cannot guarantee that all the information on this site is current or correct. Should you have specific legal questions about any of the information on this site, you should consult with a legal practitioner in your area.
References
1. Congreso de la República de Guatemala: Decreto Número 47-2008, Ley de Reconocimiento de Comunicaciones y Firmas Electrónicas.
2. Ministerio de Economía de Guatemala: Acuerdo Gubernativo Número 135-2009, Reglamento de la Ley de Reconocimiento de Comunicaciones y Firmas Electrónicas.
3. Congreso de la República de Guatemala: Decreto Número 5-2021, Ley de Simplificación de Requisitos y Trámites Administrativos.
4. Registro de Mercado de Valores y Mercancías: Directorio de Prestadores de Servicios de Certificación acreditados. https://rmvm.gob.gt/
5. Código Civil de Guatemala (Decreto Ley 106): Requisitos de forma para contratos y actos solemnes.
