Contributor: MICP Legal - Mackenna Irarrázaval Cuchacovich & Paz Abogados
Author: Rodrigo Marré Grez, Francisco Fernández Silva, Vicente Karmelic Alcalde, Sebastián Wielandt.
1. Is there specific legislation in Chile 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 specific legislation in Chile is Law Number 19.799 on Electronic Documents, Electronic Signature and Certification Services of such Signature, which allows the execution of acts and contracts to be subscribed by means of electronic signature, as long as the law does not require:
(1) A solemnity that cannot be fulfilled by the use of an electronic document or signature;
(2) The personal attendance of any of the parties; and
(3) Acts and contracts related to family law.
Therefore, the special aeronautical legislation requires for the aforementioned acts (leases, security agreements, mortgages, lease assignments, novation and IDERAs) the solemnity of being granted by a public deed or by a private instrument authorized before a Notary Public. Therefore, it is not possible to celebrate them through the use of an electronic signature.
To comply with these solemnities, foreign leasing companies grant powers to representatives in Chile to execute acts and contracts in Chile.
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?
In accordance with the previous point, it is not possible to execute aeronautical contracts using electronic signatures.
However, it is possible to execute acts and contracts of common civil legislation using electronic signatures. In this case, an advanced electronic signature should be used. The advanced electronic signature is granted by a local electronic signature provider accredited by the Ministry of Economy and certifies the identity of the signatory, also attesting to the date and time of the signature. Therefore, documents signed with advanced electronic signatures have the quality of a Public Instrument.
3. Does the Aviation Authority in Chile use an electronic register for Aircraft Documents or Aircraft Lease Documents (including Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs)?
No. The General Directorate of Civil Aeronautics maintains the National Aircraft Registry in which annotations are submitted by an e-mail request to the General Directorate of Civil Aeronautics
(“DGAC”), regarding ownership, leasing, mortgages, operating authorization, among others. Although the submissions are made by e-mail, the register does not function through an electronic platform.
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 Chile?
No. It is not possible to upload documents electronically for registration before the DGAC.
5. Do the courts of Chile 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. Aeronautical acts and contracts require, in accordance with the law, to comply with the respective solemnity depending on the act of contract, alongside the registration in the DGAC ́s registry, to be valid and enforceable.
6. Is it possible to upload lawsuits, pleadings, and procedural documents electronically in Chile?
Yes. The Chilean judicial system has enabled a Judicial Virtual Office where the parties may file all types of petitions, lawsuits, appeals and kinds of procedural documents in electronic form, as long as they have a registered user.
The Judicial Virtual Office can be accessed at the following link: https://oficinajudicialvirtual.pjud.cl/home/index.php
7. Do the courts of Chile accept procedural documents executed digitally? Is there any specific certification required? Does Chile make any distinction between official digital signatures and private digital signatures?
Yes. The courts in Chile allow the filing of procedural documents by means of simple and advanced electronic signatures. Generally, the advanced electronic signature is required by courts to submit the power of attorney.
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?
Generally, acts and contracts can be celebrated using an advanced or simple electronic signature with no additional formal requirements.
However, as stated in response number one, the Law determines that the electronic signature cannot replace the special solemnity that some acts require, such as their annotation in a registry or to grant them by means of a public deed.
9. Can foreign entities not located in Chile execute Lease Agreements or any Finance Documents with digital signatures to be filed for registration with the Aviation Authority in Chile? Are there any other formalities required?
According to what has been previously stated, it is not possible to celebrate such acts using a digital signature due to the legal solemnities they require.
10. Does the Aviation Industry in Chile usually use digital tools such as blockchain technology for the purpose of control of Aircraft Documents in substitution of printed paper Aircraft Documents?
No. The use of encryption tools is not a widespread practice in the industry. Additionally, it should be noted that the registered documents are public and can be reviewed by anyone requesting the registration certificates.
As mentioned, acts and contracts related to aviation law must be executed through physical documents that later need to go through the process of notarization, and therefore, they cannot be replaced by digital instruments.
11. Are there any Notary or Apostille requirements in Chile? If so, do they apply to electronically executed documents, and how does this affect the possibility of electronic execution and delivery of aviation documents?
As previously mentioned, for acts and contracts subject to registration to be valid, they must be executed in accordance with legal formalities, particularly before a Notary Public. That is to say, Chilean law requires that they be granted in Chile or, if granted abroad, to be done before the Chilean consul.
Given the above, for the purposes of aeronautical contracts, it would not be possible to use the apostille, which can be used in the common civil legislation.
a. Has Chile implemented the e-Apostille program?
Yes. Chile has implemented the e-Apostille program, applicable to contracts that are not regulated in the aeronautical legislation.