The Cross-Border Circulation of Notarial Acts

Revista internacional del notario 121The 121th issue of the Revista Internacional del Notariado has republished a paper originally presented to the 2014 Conference of the Australian and New Zealand College of Notaries by Dr. Jeffrey A. Talpis, on the topic of the “Cross-Border Circulation of Notarial Acts.” This paper will be of particular interest to notaries practicing in the Australian jurisdiction.

The paper has been presented in three major sections, the notarial act in domestic law, the notarial act in private international law, and lastly, the way forward. The first two sections are further broken down into appraisals  from the common law and civil law perspectives as well as addressing issues concerning the validity, recognition and enforcement of the notarial act.

Dr. Talpis immediately identifies the major problems associated with the circulation of notarial acts across borders and legal jurisdictions, these broadly being [p. 93]:

  1. The lack of a uniform definition  of the notarial act in either domestic or private international law;
  2. Potential conflict of law issues when dealing with the “formal and substantial validity” of the notarial act;
  3. The “recognition and effects, including their probative effect and enforceability”;
  4. The “status, authority, quality and power of the instrumenting notary”;
  5. The risks and effects of the forgery of, and counterfeit or tampering with an existing notarial act; and
  6. Costs and delays associated with ensuring that the notarial act is current.

Civil Law Countries

Dr. Talpis commences by stating that the notarial act is “the most important of the authentic instruments” in the civil law countries. The basis for this is the fact that the notary has a dual character: he is an official who is attributed with the authority of the state to the extent that the notary has the capacity and authority to confer authenticity to documents, and secondly, he is an experienced legal practitioner who advises his clients with respect to the material being notarised. Accordingly, “[t]he notarial act is endowed with the strongest presumption of veracity.” [p. 94]

While a notarial act can be challenged in special judicial proceedings, this is very difficult because the threshold to successfully defeat the effects of a notarised documents is exceptionally high. To complicate matters further, the Civil Codes rarely provide a satisfactory definition of what a notarial act is. Be that as  it may, attempts have been made to provide definitive frameworks for the notarial act, such the Unibank Case for the purposes of European community law (Unibank A/S v. Fleming G. Christensen C-1260/97 1999 ECR 1-3715). According to the authority of Unibank, a notarial act is authentic if:

  1. The document is drawn by a public authority in accordance with the laws of the state in which it was drawn;
  2. The document’s authenticity is established by the public notary;
  3. This establishing of authenticity relates to the signatures upon the act and the contents of the act; and
  4. The act is to be enforceable in its own right, according to the laws of the state in which it was drawn.

Dr. Talpis suggests, however, that the decision in Unibank is limited  because the authentication of the identity and signatures of parties to a notarised document does not in and of itself constitute a notarial act in most civil law jurisdictions: “[i]t is essentially an authenticated private document.” [Ibid.] He adds however that in some civil law countries the above will positively define a notarial act, so long as the notary further certifies the contents of the document being notarised and attests that the parties have capacity to contract and that the notarisation is not “contrary to public policy.” [Ibid.]

Common Law Countries

Dr. Talpis commences the section pertaining to the common law jurisdictions by stating that the definition of a notarial act – should there be one in a given state or territory – is founded upon the “activity of the notary” and not the conditions or effects of the notarial act. As an example, Talpis makes reference to Brook’s Notary and the legal position in the United Kingdom, where the definition is give along the following lines:

The act of a notary public, authenticated by his signature and official seal, certifying the due execution in his presence of a deed, contract or other writing or verifying some fact or thing of which the notary has certain knowledge.” [p. 95; Talpis at n. 2 adds that this citation is from the 12th edition of Brook’s Notrary (2002) at p. 65]

This is additionally compared to the definition of a notarial act under section 2.1 of the Professional Conduct and Practice Rules (Vic) which states that a notarial act is “any instrument which has validity by virtue only of its preparation, authentication, execution or completion by a notary.” Moreover, under rule 32.20 of the Civil Procedure Rules 1998 (Eng.) “[a] notarial act or instrument may be received in evidence without further proof as duly authenticated in accordance with the requirements of law unless the contrary is proved.” [p. 95] Furthermore, under section 2.8 the Model Notarial Act 2010 (US) the notarial act is defined as (Talpis’ words follow):

“[A]ny act of authentication or attestation that a notary is empowered to do in accordance with the provisions of the Act. This includes the certification of signatures and identity of signatures, affirmation, and certification of copies, the ‘jurat’ and statements under oath.” [Ibid.]

In contrast with the position in civil law countries however, the United States notary is not authorised to offer legal advice under the Model Notarial Act because  the US notary is not required to have any legal training. Be that as it may, some common law jurisdictions draw a distinction between the notarial act in the public and private form [for more on this distinction, see Public vs Private Form]. Likewise, pursuant to the draft Model Civil Law Notary Act (US) proposed law reform in the US distinguishes between notarial authentic acts from the authentication of private signature documents. Article 118.10 of the Civil Law Notarial Act (Florida, US) establishes an irrefutable presumption of the veracity and truth of a notarial act’s contents, and this presumption is rebuttable only in appeal proceedings. [Ibid.] Talpis concludes this section by stating that:

The differences in the definition of the notarial act in civil law and in Common Law and even within systems of the same legal tradition are significant obstacles to the international circulation of acts.” [Ibid.]

Private International Law: The Notarial Validity and Effects

Dr. Talpis suggests that conflicts regarding the effects and validity of a notarial act are resolved by the choice of law rules. Likewise, questions concerning a party’s capacity will be determined according to that party’s lex loci though Talpis does caution that in some jurisdictions this will depend on the nature of the notarial act itself. He writes that:

In general the rule of locus regit actum applies in principal to determine the law applicable to the formal validity of an act, but there are some exceptions, by virtue of codified rules, case law, legal writings or more simply notarial practice.” [p. 96]

Validity, Recognition and Enforcement of Common Law Notarial Acts in Civil Law Jurisdictions

Authenticated private agreements between parties are considered within civil law jurisdictions to be notarial acts. A question arises however whether a notarial act created in a common law jurisdiction is an authentic act in the eyes of the civil law [p. 97]. Talpis illustrates two different approaches, the first being the obvious option for the common law notarial act to be rejected outright in the civil law jurisdiction:

“[i]n other words, equivalence is excluded if the notarial act under the foreign law (lex loci contractus) does not have the same attributes as the notarial act under the law of the jurisdiction where it is produced.” [Ibid.]

Alternatively, an “international or cosmopolitan approach” could be adopted by a civil law court or notary, so that notarial acts prepared and executed by common law notaries who are public officers and legal professionals would be considered authentic acts for the purposes of private international law; this would mean that the definition of an authentic act under civil law would be flexible tot the extent that it would accommodate situations where the notarisation in question was drawn overseas, i.e. even where the provisions of the lex fori are not strictly met:

Clearly, it is not the name given to the act that is important. Rather it is the role and function of the person acting as the ‘notary’.” [Ibid.]

While Talpis favours the second approach and encourages civil law legal professionals to adopt it, he notes that the first continues to be the dominant position. This is reaffirmed by operation of the Unibank Case as well as the 18 December 2008 Resolution of the European Parliament which effectively excludes notarial acts drafted in England and Wales from the definition of authentic acts under civil law (Ref: 2008/2124 INI) [p. 98]. He concludes this section by stating that:

one should not forget that the absence of uniformity in the substantial conditions of the formation of and effect of notarial acts is also an obstacle to their cross-border circulation.” [Ibid.]

Validity, Recognition and Enforcement of Civil Law Notarial Acts in Common Law Jurisdictions

The use of civil law notarial acts in common law countries is governed under the locus regit actum principle. One difficulty that Dr. Talpis identifies is the common law requirement that parties to a contract should be advised to obtain independent legal advice so that their consent is informed (n.b. Talpis uses the term “enlightened” at ibid.). Accordingly, in some states of the US, this requirement of informed consent is not recognised by way of the notarial act alone and questions pertaining to the contract’s validity (i.e. whether the parties’ obtained independent legal advice) will be ventilated in judicial proceedings in the ordinary fashion. Talpis claim that “[e]seentially this amounts to a refusal to recognise the institution of the Civil Law notary.” [Ibid.]

Be that as it may, a recent decision of the New York Court of Appeal suggested that it is not inconceivable that a common law court will recognise the validity of an arrangement entered into between parties in a civil law jurisdiction before a civil law notary. Van Kipnis vs. Van Kipnis (2008) 900 NE 2d 977 (Court of Appeal of New York) involved a request by a spouse for the redistribution of matrimonial property in divorce proceedings before the common law court, where that requested redistribution was proposed to be effected pursuant to the terms of an agreement entered into between the spouses earlier, before a French notary; there, the common law court agreed to grant the orders sought. [Ibid.]

The position is by no means a settled matter of universal common law practice: in Re the Marriage of A.P. and K.P. (Case Number 10-D-482; unreported, Illinois Judicial Circuit Court, St. Claire County, Zina Cruse J., 20 May 2011) the court held that the evidence did not satisfy the requirements that independent legal advice was obtained by the parties or that the necessary financial disclosure was made before the agreement was entered into; the contract was therefore held to be “illegal” on the basis that its recognition under the circumstances would be contrary to public policy. Accordingly, Talpis recommends that civil law notaries may direct that their clients seek independent legal advice in situations where the terms of a notarised document may be ventilated before a common law court, even if such a direction may see to be an “abdication”  of the to civil notary’s role. [pp. 98-99]

Talpis’ Recommendations

By way of conclusion, Dr. Talpis recommends that the cosmopolitan and international approach should be adopted to the definition, characterisation and circulation of notarial acts across borders. He further suggests that this may be codified either through the vehicle of the Hague Convention or UNIDROIT, noting that if an attempt to harmonize the laws in relation to international wills has been achieved, “why not one on notarial acts?” [p. 99 n. 17].

The above is a summary of the original paper, which was presented at the 2014 Conference of the Australian and New Zealand College of Notaries and republished in the Revista Internacional del Notariado issue 121. For more information in relation to the paper itself, readers are strongly encouraged to obtain a copy of the paper as it was originally published.

A Sydney Notary Public can assist in the production of an international will which is intended to be used overseas. For more information, see the practice note on the new (albeit voluntary) regime governing the drafting and execution of international wills in New South Wales. A notary public in Sydney will be able to draft and execute the required notarial certificate which will become part of the foreign will and which will give it legal weight and probative value in the eyes of a foreign court, notarial practice or administrative body. International wills can be drafted in a language that is not English. For more information, see also our section on foreign language documents. In some cases, a Sydney Public Notary may be able to attend the home or office of an individual or business. For more on the local availability of a mobile notary, see the listed information on where our Sydney notaries can conduct their business.

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