Digital Aviation Document QAs: Bahamas
Contributor: Higgs and Johnson
Author: Andre W. Hill and Keith O. Major, Jr.
1. Is there specific legislation in Bahamas ruling the using of documents (such as Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs) executed with the use of digital platforms or any electronic signatures by the local Aviation Authority?
The validity and enforceability of electronic signatures in The Bahamas is governed by the Electronic Communications and Transactions Act, Ch.337A (the “ECTA”). There are no digital platforms for the execution of documents.
2. If your answer to (1) is yes, is there any specific requirement for the validity of such signatures, such as completion with a specific cryptographic platform developed by any local institute of technology?
Pursuant to Section 9(1) of the ECTA, documents may be signed electronically if a method is used to identify the signatory or indicate that the person intended to sign or otherwise adopt the information in the electronic communication . Section 9(3) of the ETCA provides that an electronic signature may be proved in any manner, including by showing that a procedure existed by which it is necessary for a party, in order to proceed further with a transaction , to have executed a symbol or security procedure for the purpose of verifying that electronic communication is that of such party.
Section 4 of the ECTA excludes the use of e-signatures for (among others) deeds. Provided that none of the types of documents referred to in question 1 are expressed to be a deed, the use of electronic signatures is permissible.
3. Does the Aviation Authority in Bahamas use an electronic register for Aircraft Documents or Aircraft Lease Documents (including Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs)?
No, The Bahamas does not use an electronic register for documents affecting the title of aircraft registered in The Bahamas.
4. If your reply to question 3 is yes, is it possible to upload electronic files for registration, such as Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs with the Aviation Authority in Bahamas?
Not Applicable.
5. Do the courts of Bahamas consider valid and enforceable documents executed by the use of some type of digital signature or certification even if not registered (or registrable) with the local Aviation Authority?
No, there is no such documentation.
6. Is it possible to upload lawsuits, pleadings, and procedural documents electronically in Bahamas?
It is possible for this to be done in a portion of the judicial system that deals solely with industrial employment complaints, namely The Bahamas Industrial Tribunal. However, the electronic filing of documents is not yet supported by The Bahamian Supreme Court nor the other judicial offices.
7. Do the courts of Bahamas accept procedural documents executed digitally? Is there any specific certification required? Does Bahamas make any distinction between official digital signatures and private digital signatures?
Pursuant to Section 4(c) of the ECTA, the provisions of the ECTA providing for electronic signatures are not extended to court orders or notices or official court documents which are required to be executed in connection with court proceedings. As such, the courts of The Bahamas do not accept procedural documents being executed digitally.
8. Are there any formal requirements for the validity of documents executed by digital signatures? Ex.: Does the consent of the parties to digital signatures have to be expressly referred to in the agreement?
Pursuant to Section 5(2) of the ECTA, a transaction that has been conducted using electronic means shall not be denied legal effect, validity, or enforceability because of the type or method of electronic communication, electronic signature or electronic authentication selected by the parties. As mentioned in our response under question 2 above, an electronic signature may be proven in any manner, including executing a symbol or security procedure for the purpose of verifying that it is the signature of such party. In our view, it is advisable that (i) the parties agree that electronic signatures may be used; (ii) the type of electronic signature used is unique to the signatory; and/ or (iii) the method creating the electronic signature contains components which together are unique to the signatory for identification purposes.
9. Can foreign entities not located in Bahamas execute Lease Agreements or any Finance Documents with digital signatures to be filed for registration with the Aviation Authority in Bahamas? Are there any other formalities required?
Yes, this is possible, so long as the provisions of the ECTA referred to above are observed.
10. Does the Aviation Industry in Bahamas usually use digital tools such as blockchain technology for the purpose of control of Aircraft Documents in substitution of printed paper Aircraft Documents?
No.
11. Are there any Notary or Apostille requirements in Bahamas? If so, do they apply to electronically executed documents, and how does this affect the possibility of electronic execution and delivery of aviation documents?
a. Has The Bahamas implemented the e-Apostille program?
If the documents are to be recorded at the Bahamian Registrar General’s Department pursuant to the provisions of the Registration of Records Act (RRA), there are notary and apostille requirements. Recording at the Registry of Records, inter alia, requires an affidavit to be sworn by each witness to the execution of the document before a notary public. If the execution takes place outside of The Bahamas, the affidavit must be apostilled or legalised for use in The Bahamas. If the execution of the document is not witnessed, then each executing party must swear an affidavit of due execution before a notary public.
Section 16 of the ECTA specifically provides that a document may be notarized using an electronic signature. It should be noted that, as a matter of practice, the Registry of Records is reluctant to accept documents executed and notarized using electronic signatures.
a. There is no e-Apostille program in The Bahamas.
Electronic communication is defined in the ECTA as information which is communicated, processed, recorded, displayed, created, stored, generated, received or transmitted by electronic means.
Transaction is defined in the ECTA as an action or set of actions relating to the conduct of business, consumer, or commercial affairs between two or more persons, including the sale, lease, exchange, licensing, or other disposition of personal property, including goods and intangibles, interest in real property, services, or any combination of the foregoing.
Security procedure is defined in the ECTA as a procedure, established by law or agreement or knowingly adopted by each party, that is employed for the purpose of verifying that an electronic signature, communication or performance is that of a particular person or for detecting changes or errors in content of an electronic communication.