Contributor: Diaz Palao & Siles Law Firm
Author: Patricia Siles Alvarez
1. Is there specific legislation in Perú 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, there is no specific legislation regulating this procedure under the responsibility of the General Directorate for Civil Aviation (hereinafter DGAC), which is the Aeronautic Authority in Perú.
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?
Notwithstanding the answer to the previous question, it should be pointed out that there are specific requirements for the validity of the electronic signature types which are indicated in Article 1-A of Supreme Decree No. 052-2008-PCM, “Regulations of the Law of Digital Signatures and Certificates”:
“TITLE I GENERAL PROVISIONS
ARTICLE 1-A.- The following three (03) types of electronic signature are recognized:a) Simple Electronic Signature. It is a data in electronic format attached to other electronic data or logically associated with them, used by a signatory to sign. b) Advanced Electronic Signature. A simple electronic signature that meets the following characteristics: (i) it is uniquely linked to the signatory, (ii) it allows the identification of the signatory, (iii) it has been created using signature creation data that the signatory can use under its control, and (iv) it is linked to the signed data in such a way that any subsequent modification thereof is detectable. c) Qualified Electronic Signature. A qualified electronic signature or digital signature is an advanced electronic signature that complies with the provisions of Chapter II of these Regulations”.
Regarding the provisions of section c), Chapter II states that the qualified electronic signature must be provided by a provider entity that is duly registered /accredited at INDECOPI, and complies with all the characteristics and requirements established by law.
3. Does the Aviation Authority in Perú use an electronic register for Aircraft Documents or Aircraft Lease Documents (including Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs)?
The General Directorate for Civil Aviaiton (DGAC) is not in charge of registering lease contracts, guarantee agreements and others, since by the Resolution of the National Superintendency of Public Registries N° 360-2002-SUNARP-SN, approved the Regulation for Registration of that kind of documents at the Aircraft Public Registry. The Aircraft Public Registry is a deconcentrated body of SUNARP in charge of registering acts and/or rights related to aircrafts.
This entity uses the electronic registry to register an extract or summary of the registration record, but not all the documents filed related to an specific act, agreement or amendment.
Notwithstanding the above, the DGAC do grants access to each air operator to an assigned extranet, where specific information is notified and, certain documents approved to the air operator by the aeronautic authority are compiled. The extranet has limited access, only to the Security Chief.
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 Perú?
As commented, it is not possible to register the documents detailed in the above question because the DGAC is not the competent entity for such registrations.
Notwithstanding, documents regarding aircraft security programs of the airlines can be uploaded at the referred extranet.
5. Do the courts of Perú 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?
Yes, as explained before, documents registration must be issued by SUNARP Aircraft Registry in order to be valid. That registration gives validity and makes enforceable the documents at the DGAC.
6. Is it possible to upload lawsuits, pleadings, and procedural documents electronically in Perú?
Yes, through Administrative Resolution No. 214-2008-CE-PJ, the Executive Council of Peruvian Courts established the Electronic Notification System (SINOE), which is a virtual platform for the Peruvian Courts that is use for pleadings and file procedural documentation related to the designated Electronic Court File and it is also an electronic mean for electronic notifications to parties of court proceedings.
7. Do the courts of Perú accept procedural documents executed digitally? Is there any specific certification required? Does Perú make any distinction between official digital signatures and private digital signatures?
Filing documents with electronic or digital signatures in the Courts system is admitted.
Natural persons are not required to have any digital certificated signature; digitalized signature is valid unless it were required by a specific act in the course of a procedure. However, officials of public entities have digital signatures to sign the documents they issue in courts, according to the Supreme Decree 052- 2008-PCM.
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?
Digital signatures, will be considered valid if it is generated within the framework of the Official Electronic Signature Infrastructure (IOFE) according to article 3 of Supreme Decree 052-2008-PCM, which approves the “Regulations of the Digital Signatures and Certificates Law”.
Article 6 of the Regulation establishes the conditions that the digital signature generated within the framework of the (IOFE) must have:
“CHAPTER II DIGITAL SIGNATURE Article 6.- Digital signature
It is an electronic signature that, using an asymmetric cryptography technique, allows the identification of the signatory and it has been created by means, even remotely, that guarantee that the signatory maintains under its control with a high degree of confidence, so that it is linked only to the signatory and to the data to which it refers; which allows guaranteeing the integrity of the content and detecting any subsequent modification, has the same validity and legal effectiveness as the use of a handwritten signature, provided that it has been generated by a duly accredited Digital Certification Service Provider that is within the Official Electronic Signature Infrastructure, and that has none of the defects provided in Title VIII of Book IV of the Civil Code.
The digital signature generated within the framework of the (IOFE), must be generated through a Digital Certification Service Provider duly accredited before INDECOPI.
9. Can foreign entities not located in Perú execute Lease Agreements or any Finance Documents with digital signatures to be filed for registration with the Aviation Authority in Perú? Are there any other formalities required?
Yes, foreign entities may sign all types of agreements or finance documents with digital signature or electronic signature; however, for their registration at Peruvian entities, they must have an apostille or consular legalization. In that regard, the use of digital or hand signatures depends really of the requirements to apostille or for consular legalization.
10. Does the Aviation Industry in Perú usually use digital tools such as blockchain technology for the purpose of control of Aircraft Documents in substitution of printed paper Aircraft Documents?
In Peru, the aeronautic authority has only implemented the technological platform for the submission of documents, for electronic notifications and there is also access granted to an extranet assigned to each air operator which allows the authority to notify information and compile documents approved to the air operator.
Finally, the technological platform is also a tool used at SUNARP level for the registration of documents as indicated in question 5.
11. Are there any Notary or Apostille requirements in Perú? 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 general terms, all documents issued abroad with manual or electronic signature must be duly apostilled for their validity in Peruvian entities; however, there are administrative procedures before the aeronautical authority that validate some documents issued abroad with simple or manual signature.
a. Has [Perú] implemented the e-Apostille program?
It is in process to be implemented, by the moment it is subject to the evaluation of the kind of document to be apostilled; so it does not apply to all documents.