Digital Aviation Document QAs: Pakistan

There is currently no aviation-specific legislation in Pakistan governing the use of documents such as aircraft lease agreements, security agreements, aircraft mortgages, aircraft lease assignments or novation, and IDERAs executed with the use of digital platforms or electronic signatures for submission to or execution by the Pakistan Civil Aviation Authority (the “Aviation Authority”).

The relevant aviation laws, including relevant forms and notifications issued by the Aviation Authority from time to time, neither provide for nor envisage the use of digital platforms or electronic signatures on the aforesaid documents. Notwithstanding the foregoing, it may be worth noting that Pakistan has enacted the Electronic Transactions Ordinance 2002 (the “Ordinance”), which governs the use, legality and procedural formalities in relation to electronic documents and electronic signatures generally. The admissibility of documents executed electronically in legal proceedings in the courts of Pakistan is, therefore, determined in accordance with the Ordinance read with the law of evidence as set out in Qanun- e-Shahadat Order 1984 (the “Order,” i.e., the law of evidence in Pakistan).

The general rule established under the Ordinance is that “no document, record, information, communication, or transaction shall be denied legal recognition, admissibility, effect, validity, proof or enforceability on the ground that it is in electronic form and has not been attested by any witness.” Further, under Section 7 of the Ordinance, “the requirement under any law for the affixation of signatures shall be deemed satisfied where electronic signatures1 or advanced electronic signatures2 are applied”.

On this related note, Article 73 of the Order sets out the requirements for the admissibility of primary evidence in a court of law in Pakistan. The nature of primary evidence has been amended by the Ordinance to include an electronic Document3, first generated, sent, received or stored in electronic form, to which a security procedure4 was applied thereto at the time it was generated, sent, received or stored. Further, pursuant to Article 78-A of the Order, if a document is alleged to have been signed or have been generated wholly or in part by any person through the use of an information system5 and is denied as having been signed or generated as such, the application of a security procedure to the signature or the electronic document must be proved.

No, the Civil Aviation Authority in Pakistan does not use an electronic register for Aircraft Documents or Aircraft Lease Documents (including Leases, Security Agreements, Mortgages, Lease Assignments, Novation, and IDERAs).

N/A

Non-registration of aviation documents with the CAA (whether on account of being executed digitally/electronically or otherwise) would not, in and of itself, render such documents invalid or unenforceable in any legal proceedings instituted before the courts of Pakistan. Please also see our response to Question 2 above.

No, it is not currently possible to upload lawsuits, pleadings, and procedural documents electronically in Pakistan. However, it is worth noting that the legal system in Pakistan has established an online portal for courts to ascertain updates on the status of pending and disposed cases.

The courts in Pakistan presently do not accept electronically executed documents for the procedural purpose of instituting or defending any legal proceedings such as pleadings and interim applications etc. Any person seeking to institute legal proceedings is required to physically present themselves before the relevant branch/office of the relevant court to execute the documents for the purpose of verification and authentication, which may then be subsequently filed in court. Without prejudice to the foregoing, our courts do recognize documents prepared, produced, or generated through electronic devices as admissible in evidence on the basis that the Ordinance has introduced provisions that have amended the Qanun-e- Shahadat Order 1984 (i.e., the law on evidence in Pakistan). Please also see our response to question number 2 above.

Is there any specific certification required?

As our response to the previous question is negative insofar as the filing of documents is concerned in connection with the institution or defense of any legal proceedings, there is no specific certification requirement on the basis that such documents are not accepted by the courts in Pakistan. In relation to any printout of an electronic document filed by a litigant as part of its claim or defense during the course of the legal proceedings before the courts in Pakistan, please see our response to question number 2 above.

Does Pakistan make any distinction between official digital signatures and private digital signatures?

Presently, there is no distinction between official digital signatures and private digital signatures set out in the Ordinance.

No, there are no formal requirements for the validity of documents executed by electronic signatures. Pursuant to Section 7 of the Ordinance, the requirement under any law for affixation of signatures shall be deemed satisfied where electronic signatures or advanced electronic signatures are applied. Further, pursuant to Section 8 thereof, an Electronic Signature “may be proved in any manner, in order to verify that the electronic signature is of the person that has executed it with the intention and for the purpose of verifying its authenticity or integrity or both”.

It is pertinent to note that the Ordinance has removed the requirement for attestation and notarization for a period of two years from the date of the enactment of the aforementioned Ordinance, or till the time either the Federal or Provincial Governments, as the case may be, devises and implements measures for attestation and notarization of electronic documents, whichever is later. We are unaware of any measures that have been implemented by the Federal or Provincial Governments in respect of the requirements of notarization and attestation as of the date of this analysis.

Yes, as a matter of law, foreign entities may execute the relevant Lease Agreements and Finance Documents with electronic signatures in view of the provisions of the Ordinance, in particular, Section 7, whereby the requirement under any law for affixation of signatures shall be deemed satisfied where electronic signatures or advanced electronic signature are applied. However, as a matter of practice, the risk of the Aviation Authority requiring submission of the Lease Agreements executed in wet ink by the relevant parties may not be completely disregarded.

Are there any other formalities required?

Lease Agreements and Finance Documents, generally, are required to be witnessed by either two adult males or one adult male and two females in order to be admissible in evidence in the courts in Pakistan.

Under the Constitution of Pakistan 1973 (the “Constitution”), stamp duty is a provincial subject and falls within the domain of the Provincial Assembly. While the rates of stamp duty vary from province to province, the basic legislation is largely similar, if not identical. The relevant nexus for the attraction of stamp duty under Pakistan law is the place of execution of an instrument rather than the jurisdiction of incorporation of a party to an agreement.

Pursuant to section 17 of the Stamp Act 1899 (the “Stamp Act”), all instruments chargeable with duty and executed by any person in Pakistan must be stamped before or at the time of execution. Section 18 of the Stamp Act states that if an instrument chargeable with duty is executed out of Pakistan, it must be stamped within three (3) months after it has been first received in Pakistan. An instrument executed outside Pakistan is chargeable to duty in Pakistan only if it relates to any property “situated in Pakistan or to any matter or thing done or to be done in Pakistan and is received in Pakistan.”

Under section 35 of the Stamp Act, unless an instrument is duly stamped, it shall not be admissible in evidence in the courts in Pakistan. However, clause (e) of the proviso to section 35 of the Stamp Act states that the provisions of section 35 of the Stamp Act shall not prevent the admission of any instrument in any court of Pakistan when such instrument has been executed by or on behalf of the Government. “Government” is not defined in the Stamp Act. However, under the General Clauses Act 1897 (the general law inter alia defining commonly used terms in legislation), “Government” includes both the Federal Government and the Provincial Government.

Not stamping a document that is required by law to be stamped could result in it being impounded under the Stamp Act. Execution of a document prior to stamping would render the document liable to a penalty, being the unpaid applicable stamp duty plus up to ten times the applicable stamp duty.

No, the Aviation industry in Pakistan does not usually utilize digital tools such as blockchain technology for the purpose of controlling aircraft documents as a substitute for printed paper aircraft documents.

As of 9 March 2023, Pakistan has acceded to the Hague Convention (which abolishes the requirement of legalization for public documents and introduces the requirement for apostilization) and has recently introduced a bill to incorporate the Hague Convention into domestic law. The bill is currently titled the ‘Apostille Act 2023’ which has been passed by the National Assembly and is pending approval by the Senate of Pakistan. Therefore, once the Hague Convention is enacted as part of the domestic law, documents may be required to be notarized and apostilled in accordance with the Apostille Act 2023 and public documents, which previously were also required to be consularized would no longer be required pursuant to Article 2 of the Hague Convention.

If so, do they apply to electronically executed documents, and how does this affect the possibility of electronic execution and delivery of aviation documents?

No, the requirement to notarize and apostille documents does not extend to documents executed electronically. Pursuant to the Ordinance, electronic documents are not required to be attested or notarized for a period of two years from the date of commencement of the Ordinance or till the time the appropriate authority has devised and implemented measures for attestation and notarization of electronic documents, whichever is later. We are not aware of any measures passed by the Federal or Provincial Government in connection with the notarization of electronic documents. Accordingly, electronic documents are not currently required to be attested or notarized.

Notwithstanding the aforesaid, as a matter of practice, the Aviation Authority requires the submission of notarized and consularized copies of aviation documents that are required to be submitted with it on a case-by-case basis depending on the nature of the activity for which the submission is being made with it.

Has Pakistan implemented the e-Apostille program?

While the electronic Apostille Programme (e-APP) as part of the Hague Convention has been created to support the electronic issuance and verification of Apostilles for countries that have acceded to the Hague Convention, Pakistan has not yet implemented the e-APP.

1 “electronic signature” means any letters, numbers, symbols, images, characters or any combination thereof in electronic form, applied to, incorporated in or associated with an electronic document, with the intention of authenticating or approving the same, in order to establish authenticity or integrity, or both;

2 “advanced electronic signature” means an electronic signature which is either— (i) unique to the person signing it, capable of identifying such person, created in a manner or using a means under the sole control of the person using it, and attached to the electronic document to which it relates in a manner that any subsequent change in the electronic document is detectable ; or (ii) provided by an accredited certification service provider and accredited by the Certification Council as being capable of establishing authenticity and integrity of an electronic document;

3 “document” has been defined in the Qanun-e-Shahadat Order 1984 to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose recording that matter;

4 “security procedure” means a procedure which : (i) is agreed between parties; (ii) is implemented in the normal course by a business and which is reasonably secure and reliable ; or (iii) in relation to a certificate issued by a certification service provider, is specified in its certification practice statement; for establishing the authenticity or integrity, or both, of any electronic document, which may require the use of algorithms or codes, identifying words and numbers, encryption, answer back or acknowledgment procedures, software, hardware or similar security devices;

5 “information system” means an electronic system for creating, generating, sending, receiving, storing, reproducing, displaying, recording or processing information;