Costa Rica
Contributor: Nassar Abogados
1. Is there specific legislation in Costa Rica 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?
No. Nevertheless, Costa Rica has a Law on Certificates, Digital Signatures and Electronic Documents N° 8454 (“Law”). Pursuant to article 1 of the Law, it is applicable to “to all kinds of transactions and legal acts, public or private, unless otherwise provided by law, or where the nature or particular requirements of the specific act or business are incompatible.”
The Law refers to the functional equivalence of the digital signature to the autograph signature. In the certified digital signature, the authorship and responsibility of its owner will be presumed, unless proven otherwise. Nevertheless, the Law expressly states that the use of electronic documentation will not be exempt from formalities required by law, such as the certification of signatures by a Public Notary and fiscal stamps, among others.
Certain legal acts, such as mortgages and the lease agreements of aircraft registered in Costa Rica, must be granted or notarized in public deed before a Public Notary of Costa Rica for its electronic registration at the National Registry. Accordingly, in those cases, said Law is not applicable as there is a formality of a public deed that must be complied with.
The Law regulates two types of signatures the digital signature and the certified digital signature. The certified digital signature is issued by an authorized certifier in Costa Rica.
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?
No, the Law does not regulate a specific technology. The regulation of the Law states that the digital certificate issued by the authorized certifier must comply with the INTE-ISO/IEC 17021 and INTE/ISO 21188 latest standards and the policies established by the Digital Signature Certifiers Directorate.
Pursuant to article 11 of the Law, the purpose of the digital signature is to warrant: a.) The legal link between a document, a digital signature, and a person; b.) The integrity, authenticity, and general non-alteration of the document, as well as the associated digital signature; and c.) The authentication or certification of the document and the associated digital signature only in the event of the exercise of public certifying powers. For that purpose, the Regulations to the Law state that the company in Costa Rica authorized as a certifier must, among others:
Use at least one face-to-face verification and registration process for its subscribers. Keep a copy of the documentation used to verify the identity of the person. Register biometrically (photograph, fingerprints, etc.) the subscriber to whom a certificate will be issued. Require the use of secure signature creation modules,with security certification indicated in accordance with international standards and the Policies established by the Digital Signature Certifiers Directorate.
Establish a subscription agreement detailing the level of service offered and the duties and responsibilities of the parties. The Digital Signature Certifiers Directorate may establish any other requirement it deems pertinent as issuer and policy manager of the digital signature system.The Law also allows the approval of foreign certificates, for which the following requirements must be met:
The certificate is endorsed by a certifier registered in the country. It complies with the technical requirements established by the Directorate of Digital Signature Certifiers, and That there is a reciprocal agreement between Costa Rica and the country of origin of the foreign certifier.3. Does the Aviation Authority in Costa Rica use an electronic register for Aircraft Documents or Aircraft Lease Documents (including Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs)?
No.
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 Costa Rica?
N/A.
5. Do the courts of Costa Rica 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?
As per consultation, this submitted question was reformulated as follows:
“Do the courts of Costa Rica 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?”
There is no case law that refers specifically to the Aviation Authority. It will depend on the nature of the document if it requires a formality for its validity, comes from another country, has a certified digital signature, or if there are conventions between institutions, among others.
6. Is it possible to upload lawsuits, pleadings, and procedural documents electronically in Costa Rica?
Yes, by using the digital system of the Judicial Authority (called “Gestion en línea”), the person who does the filing must have a username and password, which is obtained at the Courts offices. The lawsuit must comply with the requirements stated in the Civil Procedures Code.
7. Do the courts of Costa Rica accept procedural documents executed digitally? Is there any specific certification required? Does Costa Rica make any distinction between official digital signatures and private digital signatures?
Yes, procedural documents executed digitally can be filed through the Court’s digital system, which admits documents signed with a certified digital signature. They are usually signed by the attorney, but they can also be signed by the legal representative of a company involved in the process, the plaintiff, the defendant, etc.
In the case of documents originating in other countries, they must be apostilled pursuant to article 294 of the Public Administration General Law.
Yes, the Law on Certificates, Digital Signatures and Electronic Documents N° 8454 regulates the simple digital signature and the certified digital signature. The latter is issued by a certifier authorized in Costa Rica, and according to article 10 of the Law, the certified digital signature will be presumed, unless proven otherwise, of the authorship and responsibility of its owner.
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?
Article 11 of the Law states that the purpose of the digital signature is to warrant: a.) The legal link between a document, a digital signature, and a person; b.) The integrity, authenticity, and general non-alteration of the document, as well as the associated digital signature; and c.) The authentication or certification of the document and the associated digital signature only in the event of the exercise of public certifying powers.
To verify the above in certified digital signatures, the certifier in Costa Rica enabled a web page to validate that the digital signature complies with the guarantee of integrity and authenticity, which means that the document has not been modified after its signature, the guarantee of validity in time whereof the document was signed with a valid certified digital signature, and the seal of time that allows to confirm the existence of the signature or document in time.
In the cases of non-certified digital signatures and when digital signatures can be used as they are not incompatible with the law by the formalities stated therein, article 2 of the Law is applicable, which refers to the autonomy of the will of individuals to regulate their relations.
For instance, article 5 of the Law states that the use of electronic documents is valid for “the formation, formalization and execution of contracts”. Lastly, article 9 of the Law states that “Documents and communications signed by digital signature will have the same value and probative effectiveness as their equivalent signed in handwriting. In any legal norm that requires the presence of a signature, both the digital and the handwritten will be recognized in the same way.”
As even certified digital signatures can be repudiated, it is important to refer in private documents -specifically, contracts- the consent of the parties to use a non-certified digital signature, and therefore the agreement, its amendments, or related documents signed in the said form will be enforceable between the parties.
It is of particular importance to use a digital signature application with which it can be verified that the person signing is who she says, as well as the integrity and inalterability of the document, and to keep the respective support with which the above can be proven, especially if any claim arises in connection therewith.
Also, depending on the nature of the document, it must comply with the formalities required for the filing, such as the fiscal stamps, certification of the signature, among others, pursuant to article 10 of the Law.
9. Can foreign entities not located in Costa Rica execute Lease Agreements or any Finance Documents with digital signatures to be filed for registration with the Aviation Authority in Costa Rica? Are there any other formalities required?
In the cases of registered aircraft in Costa Rica, a notarized version of the agreement must be filed at the Aviation Authority and the National Registry; any digital signatures must be certified and apostilled. Lease agreements that shall not be registered, such as wet leases, are admitted with a digital signature. Finance documents must be filed with the corresponding apostille, especially for the certification of a route or its renewal.
10. Does the Aviation Industry in Costa Rica 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 Costa Rica? If so, do they apply to electronically executed documents, and how does this affect the possibility of electronic execution and delivery of aviation documents?
In Costa Rica, all the documents that are issued outside of the country must be apostilled or legalized and translated to Spanish. This also applies to electronically executed documents. The above is based on article 294 of the Public Administration General Law.
For certain processes, documents are admitted electronically with no apostille, such as the noise certificate, airworthiness certificate, or registration certificate.
The authorities in Costa Rica admit the electronic apostille from other countries, which can be validated on an official website or with a QR code. Costa Rica has not implemented the e-Apostille program, and currently, the documents that are issued in Costa Rica must have the physical apostille stamped by the Ministry of Foreign Affairs.