Contributor: Nassar Abogados
Author: Jessy Aguilar
1. Is there specific legislation in Honduras 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, the Law on Electronic Signatures (Decree 149-2013) and its Bylaw (Executive Agreement 41-2014) establish the regulation of the use and legal effectiveness of electronic signature.
The Law establishes that any electronic signature created or used outside Honduras shall produce the same effects as a signature created or used in Honduras, provided that they are issued by a reliable certifying authority and duly recognized at the international level and when these signatures present a degree of reliability as to the regularity of the details of the signature, as well as its legitimacy and validity.
Any manifestation with a representative or declarative character expressed or transmitted by an electronic means -whatever its means of transmission or storage- will have the same validity as those that were subscribed by paper and autographed signature, as long as the advanced electronic signature is used in the same.
The Law expressly states that the use of the electronic signature will not be applicable to the acts or contracts granted or celebrated in the following cases: 1) Those in which the Law requires a solemnity that cannot be fulfilled by means of an electronic document; and 2) Those related to Family law.
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.
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 applicable regulations state that the advanced electronic signature will always be of general application, proving the existence of obligations and giving access to the registration of these documents in the public registries. However, in order to promote digital transformation, the government may grant the equivalence of effects to the advanced electronic signature for certain cases to other types of signature or means of identification of persons, among others, as follows: 1) Hybrid technologies based on Public Key Infrastructure (PKI) and Biometric Signature or any other equivalent or substitute technology; 2) Cloud- based electronic signature systems; 3) Two-factor systems; 4) Biometric systems including photographic means; 5) Others that may be developed as technologies advance.
For advanced signatures, the Regulations to the Law state that these signatures shall have the following minimum characteristics:Based on an electronic certificate issued by a Certification Service Provider. It is unique to the holder of the electronic signature, and each data message signed by the holder. Both the signature and the signed message are encrypted using robust cryptographic mechanisms. It is added or logically associated to the data message in such a way that it is possible to detect if the electronic signature has been altered. It is generated under the exclusive control of the holder of the electronic signature. It is susceptible to verification. It is generated by means of a confidential and secure electronic signature creation device. It is based on a specific methodology used to create and verify the subscriber’s electronic signature imposed in the data message.
3. Does the Aviation Authority in Honduras use an electronic register for Aircraft Documents or Aircraft Lease Documents (including Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs)?
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 Honduras?
5. Do the courts of Honduras 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 question was reformulated as follows:
“Do the courts of Honduras 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 Honduras?
On November 11, 2020, the Law on Electronic Management of Judicial Proceedings (Decree 146-2020) entered into force, whereby the Electronic Judicial File System (SEJE) was created for the purpose of creating electronic judicial files with the set of proceedings, documents and other digital files associated with a given jurisdictional case. Likewise, it allows the presentation of lawsuits, pleadings and other documents, the issuance of judicial resolutions, notifications and other procedural actions that are carried out in judicial processes. To date, the system has not been developed or implemented; therefore, it is currently not possible to upload lawsuits, pleadings, and procedural documents electronically in Honduras.
7. Do the courts of Honduras accept procedural documents executed digitally? Is there any specific certification required? Does Honduras make any distinction between official digital signatures and private digital signatures?
At this time, the courts of Honduras do not accept procedural documents executed digitally.
Yes, the Law on Electronic Signatures regulates the simple digital signature and the certified digital signature. The latter is issued by a certifier authorized, and the certified digital signature, it 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?
Pursuant to article 8 of the Law, an electronic signature will be considered reliable by means of the fulfillment of the requirements as long as it includes the following: 1) The signature creation data, in the context in which it is used, corresponds exclusively to the signatory; 2) It is susceptible of being verified; 3) The signature creation data were, at the time of signing, under the signatory’s exclusive control; 4) It is possible to detect any alteration of the electronic signature made after the time of signing; 5) It is linked to the information or data message, such that if these are changed, the electronic signature is invalidated; and, 6) It conforms to accepted regulations.
By electronic means, all types of acts, contracts and any other type of legal business may be held if it is possible to reliably show the will of the parties to carry out the legal business by that means. The consent of the parties is proven by the exchange of emails, videos, voice recordings, exchange of text messages, electronic acceptance of standardized contracts or by sending an electronic self-portrait holding the identity document visibly next to the face of the signatory taken through the corresponding application prior to sending the respective application or form.
9. Can foreign entities not located in Honduras execute Lease Agreements or any Finance Documents with digital signatures to be filed for registration with the Aviation Authority in Honduras? Are there any other formalities required?
Yes, foreign entities can execute Lease Agreements or any Finance documents with digital signatures. However, these documents must be notarized and apostilled for their registry.
10. Does the Aviation Industry in Honduras usually use digital tools such as blockchain technology for the purpose of control of Aircraft Documents in substitution of printed paper Aircraft Documents?
11. Are there any Notary or Apostille requirements in Honduras? 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 Honduras, 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 pursuant to article 398 of the Administrative Simplification Law.
For certain processes, documents are admitted electronically with no apostille, such as the noise certificate, airworthiness certificate, and registration certificate.
Yes, Honduras has implemented the e-apostille program. Digital apostilles are issued by the Ministry of Foreign Affairs.