Negotiate yourself – Newspaper Kommersant No. 215 (7416) dated 11/21/2022

At the EDI forum, organized last week by the Academy of Information Systems, Roman Kuznetsov, head of the legal department of the Ministry of Digital Transformation, said that the agency agreed with the FSB to amend the federal law on electronic signature (63-FZ) that participants in civil relations can agree among themselves on the use of a foreign electronic digital signature (EDS) as an unqualified EDS without the conclusion of a relevant international treaty by the Russian Federation. According to the official, the amendments will be made to the draft law of the deputy Anatoly Aksakov on the possibility of transferring powers using EDS.

At the end of August, Deputy Prime Minister Dmitry Chernyshenko instructed the Ministry of Digital Development to work out this issue together with the Federal Tax Service and the Federal Security Service at a meeting of the interdepartmental working group on EDI, where the results of the 2020-2021 pilot on the exchange of electronic shipping documents in cross-border trade using the mechanism of a trusted third party were discussed (she checked the signatures) between Belarus and the Russian Federation. However, according to the law, foreign EDS can be recognized only if Russia has an international agreement on this.

This rule has a huge impact on business. According to Mikhail Srodnykh, General Director of SKB Kontur, cross-border EDI is cheaper – for Moscow and Beijing, for example, the difference in cost reaches 200 times. Nobody is in a hurry to conclude intergovernmental agreements on the recognition of signatures. So, despite the fact that the issue of recognizing EDS for the needs of companies participating in public procurement, even in the “friendly” EAEU, has been on the list of allied trade barriers for many years, its decision has been postponed to 2025. At the same time, by signing the agreement on the EAEU, the participating countries pledged to create equal conditions for the participation of each other’s companies in public procurement and trade, but the non-recognition of the union EDS, obviously, violates this equality de facto.

As my interlocutors explain, the Mintsifra amendments are a compromise between the position of business and the FSB, which allows recognizing a “foreign” electronic signature created according to the norms of a foreign state as analogues of a domestic unqualified EDS. In order for this to happen, the expert community had to explain to regulators the importance of this rule. However, a clear answer to the question of whether such a compromise can solve the problem of the “electronic” participation of suppliers from the EAEU in the Russian state order and whether Russian regulators will have the right to conclude “local” agreements on the recognition of digital signatures, for example, large suppliers from the countries of the union, “Kommersant” achieve departments failed. If the barriers are not removed, but bypassed, one should not be surprised at the intricacies of the roundabout paths.