Fundamental Principles of the Indian Notarial System

The 122th issue of the Revista Internacional del Notariado has republished a brief report by the President of the Indian Notarial Association. Shidheswar De’s contribution to the most recent issue of the UINL’s journal, “Fundamental Principles of the Indian Notarial System” commences by establishing the core concern of the notary’s practice, namely the certification of authenticity: “The authentic act offers undeniable guarantees: certain date, probative force and enforceability.” Furthermore, “It is a legal instrument adapted to the needs of society: safeguarding individual freedom, preserving economic interests and assuring transparency.” To put is more succinctly, the notarial act “is an instrument of legal certainty as it is a particularly efficient means of evidence.” [p. 97]

President De then sets out in enumerated form the principles which constitute the “essence of the notarial institution in India.” [Ibid.]

  1. Part I – Notaries and their Function
  2. Part II – Notaries and their Documents
  3. Part III – Notaries Organisation
  4. Part IV – Notaries Ethics

What follows is a summary of the salient points under each of the above headings. Practitioners and members of the public are strongly encouraged to read the original article for more information.

Part I

The authority of the Indian notary is established by noting his appointment by the State and Union of India. Notaries are required to act impartially and independently. Notaries are involved in all judicial activities but also aim to resolve disputes through mediation and other pre-litigation means. Notarial certification is sufficient to establish the authenticity and veracity to documents being signed in both the legal and commercial world. [§§ 1-4]

Part II

The authenticity of the notarial act is drawn from the signature, date and content of the document, which is then archived by the notary. The notary must at all times be guided by the instructions of his client but ensure that the outcome is consistent with the applicable laws. Before a notarized document is produced, the identities and authority of the parties must be ascertained and established. The notary must ensure that the instructions of the parties are not coerced but given voluntarily irrespective of the form that the notarial deed takes. Notaries are responsible for their drafting however they may consider suggestions and drafts that are provided to them, and then augment or amend them as needed. Parties who are authorized to obtain copies of a notarized deed have a right to acquire a copy, and that copy will have the same evidentiary weight as the archived original. The notarial deed can be disputed via judicial channels, otherwise it is considered a conclusive statement on the facts as stated in its content: they “enjoy the benefit of dual presumption of legality and accuracy of content.” Among other functions, the notary has the power to legalise signatures and executed documents as well as certify that documents are true and accurate copies of their originals. All notarised deeds that comply with the aforementioned principles are enforceable throughout India, irrespective of the jurisdiction in which they were drawn. [§§ 5-11]

Part III

Indian law – primarily the Notaries Act 1952 (Ind.) – determines the number of notaries and the distribution of notarial offices, as well as the competence of each notary. Notaries must be members of a professional association governing the notarial profession. United Kingdom law no longer governs the appointment of notaries in India, as it did under section 138 of the Negotiable Instruments Act 1881 (Imp). Individual state laws will determine the qualification and conditions for the appointment of notaries, however all will have the requirement that a degree in law is a fundamental criterion of admission to the profession. [§§ 12-15]

Part IV

Each state of India will determine the supervisory and disciplinary mechanisms that apply to the notarial profession. Notaries are required to act in good faith and in full integrity at all times; this obligation is directed to both the State and their colleagues. Professional secrecy is a value that notaries are expected to observe while discharging their duties to their clients. Notaries must also maintain impartiality, which might involve providing appropriate assistance to a party that is disadvantaged or in a vulnerable position. The efficient and effective discharge of professional duties involves an international notarial system of reciprocity. The choice of notary is a matter for each individual party requiring notarial services. A notary is bound by the professional standards of ethics, according to both local and international law. [§§ 16-22]

The above is a summary of the original report, which was published in the Revista Internacional del Notariado issue 122 on pages 95-98. For more information in relation to this document, readers are strongly encouraged to obtain a copy of the paper as it was originally published from the UINL.

Notarial services in Sydney can be offered strictly by appointment, by contacting us via the online form on this website. All inquiries are answered as soon as possible by a Sydney Public Notary who will be happy to discuss what your requirements are, what kind of notarial act is appropriate and what steps are involved to obtain proper notarisation. In some situations, individuals and businesses can be attended to by a mobile notary at their office or a mutually convenient location. For more information on how we can help, see our Services and Examples pages.

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ANZCN Practice Note – Dealing with Foreign Documents

The Australian and New Zealand College of Notaries has circulated a Practice Note prepared by Prof. Peter Zablud and Michael Bula (20 April 2017) concerning the treatment by Australian Notaries of “authentic form notarial acts” drafted in civil law jurisdictions such as France, Germany, Italy or Spain. This type of notarial act will take the form of a “single narrative instrument written by the notary in the first person which sets out or perfects a legal obligation and/or records some fact or thing.” [p. 1 ¶ 2] This authentic form recalls what is known in the New South Wales notarial practice as a “notarial act in the private form”, i.e. a document that is wholly drafted by the public notary himself.

The Practice Note states that the authentic form of the notarial act is at the core of the civil law country’s legal system. Accordingly, there are very precise rules and regulations governing the manner in which notaries conduct their practice and provide their services. A notary must “certify in the notarial act itself that the Appearers well understand the transaction(s), their rights and obligations and in appropriate cases, the consequences of not meeting specific obligations.” [p. 1 ¶ 6] France is cited as an example, which has the following requirements for the drawing of a proper and valid notarisation:

  • The document must be read to the relevant parties or their legal representatives (the “Appearers”).
  • The applicable law must be explained to the Appearers.
  • Any questions that the Appearers ask of the notary must be answered.

The point being stressed by Prof. Zablud and Bula is that “failure by a notary to meet his or her responsibilities or to comply with prescribed formalities can render an entire transaction null and void.” [p. 1 ¶ 7]

Example: Foreign Power of Attorney— Authentic Form — Australian Notary Witnessed Signature — Did not Comply with Foreign Legal Requirements — Notarial Act Defective — Set Aside

The Practice Note illustrates how a local notary’s mishandling of a notarial act can lead to serious legal consequences for his client. An example involves a power of attorney drafted by a French notaire but which was presented to an Australian notary who was not familiar with the French language. The purpose of the document was to secure a guarantee for a loan on the purchase of property in France. The Australian public notary merely witnessed the signature of his client as it was applied to the document. He did not, however, know that the document was in the authentic form nor what that entailed. As a consequence, the document was not read to the client, its particulars were not discussed with the client, and the local notary did not execute the document as the author of the notarial act. The bank sought to enforce the guarantee after a default in a payment for the property. In a dispute over the validity of the guarantee, the French civil court held that the guarantee (and therefore the mortgage) ought to be set aside for being defective.

Important Lessons:

Reflecting on the example cited above, the Practice Note warns that Australian public notaries should be wary when they are presented with foreign language documents that they may not understand; these document may import specific legal obligations that might not be immediately apparent to the local practitioner. Moreover, in the event that an Australian notary public is asked to witness a power of attorney or other like document, he should ascertain beyond any doubt whether that document is drafted in the authentic (public) or private form, and precisely what he can or should do. Suggested steps include:

  • Contact the drafter of the document and make direct inquiries about its nature. The local notary can request whether or not the document can be redrafted in private form, thus allowing it to be notarised by way of a notarial certificate followed by an apostille or legalisation.
  • Have the document translated by an accredited translator.
  • If still in doubt about one’s own legal obligations, refer the client to a consular officer of the country in which the document, once notarised, is to be used, or a lawyer who is fluent in the language in which the document is drafted. [p. 2 passim]

For more general information on related issues, see the following sections on our website:

NB: The above is a summary and interpretation of the Practice Note. For a complete copy of the Practice Note, readers are strongly encouraged to contact the Australian and New Zealand College of Notaries directly.

Should you need a foreign power of attorney notarised by a Sydney Notary Public, you are welcome to contact us for more information on how we can help having your documentation executed properly. Services can be provided to you directly in the Sydney CBD region and surrounding suburbs, including Broadway and Surry Hills. A Public Notary can also come to you if you or your business is located in the north shore, including North Sydney, Artarmon, Kirribilli, St Leonards, Lane Cove, Chatswood, Willoughby and surrounds. For more on our availability, see our Availability page.

Revista Internacional del Notariado (No. 122, 2016)

The 122th issue of the Revista Internacional del Notariado, published by the Unión Internacional del Notariado (International Union of Notaries) was received earlier this year. The former President’s message drew on the legacy of the notariates of Latin America in creating a universalised community of notaries spanning the globe. In his editorial, Águeda L. Crespo asks “Where do we lean as leaders: towards integrity or isolation? What do we expect from our leaders?” Recognising the tension between the duty to honestly represent one’s constituents on one hand and the imperatives of leadership, he suggests that what is needed is a balance between “conviction and responsibility.” The report claims that the rise of isolationism — referring specifically to Brexit as an example — is the result of a failure of leadership in transmitting the values of integration and properly advocating for greater universalisation, presumably of legal systems that interact on the global arena. [p. 19] “Hetrogeneity and diversity of opinions are enriching, sicne only from them does the fundamental sense of things emerge” he writes, adding that “We need to put aside all economicist [sic] and utilitarian analysis both on the law and peer relationships, and resume the path towards community interests, which interests have been sustained with guarantees, as a banner, by UINL’s founders.” [p. 20]

Most of the content of the journal is not in English, however the following content which may be of interest to the Sydney notary public has been translated and is included in the publication:

  • Letter from the President, Daniel-Sedar Senghor, “To The Presidents of the Member Notariats and to the Councilors of the UINL” (Dakhar, Yemen: 2 December 2015) [pp. 39-40]
  • Recommendations: 2nd Afro-American Conference “Hugo Pérez Montero” – the Legal Certainty of the Investments Between Africa and America – “Building a Bridge of exchanges and services over the South Atlantic Ocean” (Rio de Janeiro, Brasil: 28-29 September 2015) [pp. 41-42]
  • Héctor Galeano Inclán and Fernando Trueba Buenfil, “Commission of Notarial Deontology” (Istanbul, Turkey: 15-18 May 2015) [pp. 51-52]
  • Maria de los Reyes Sanches Moreno with Igor Medvedev, Fotini Koutkou, Sabrina Belloni and Marc Geleijns, “European Affairs Commission (EAC): The Evolution of Family Law in European Countries and its Consequences for Notary Law” (November 2015) [pp. 75-83]
  • Shidheswar De, “Fundamental Principles of the Indian Notarial System” (Bengal, India: 12 April 2016) [pp. 95-98]

The short piece by Shidheswar De, President of the Indian Notarial Association, on the principles of the Indian notarial practice may be of interest to the Commonwealth notary. Time and resources permitting, a review of some of the above articles may be publish here in the near future.

Should you be looking for a Sydney Notary Public, contact us on the form provided here to discuss what we can do for you. We are a busy practice but endeavour to respond to all contacts within 24 hours. In some circumstances, a public notary in Sydney can come directly to your place of business or arrange a mutually convenient place where notarial services can be provided. For more information about what we can provide, see our Examples of Notarisations and Certificates and Services Offered sections of this website.

What happens after your document is notarised? Authentication and Apostille in New South Wales

People who have not had any prior experience obtaining a Sydney Notary Public may find the process of notarising their documentation a little confusing. Often, a new client may think that getting the certification from the notary is enough to have their documentation recognised in a foreign jurisdiction (i.e. in a foreign court, tribunal or administrative body). With very few exceptions,* this is not the case. Depending on the country in which the notarised document is to be used, it will almost certainly require further steps before it is ready for presentation. Clients should therefore be very careful that they have followed all the steps in the process before sending their material to where it needs to be viewed or cited.

The Australian and New Zealand College of Notaries has published a very useful guide to notarial practitioners that outlines the basics of what happens after a document is certified and sealed in New South Wales. This is a valuable reminder to practitioners to either (a) properly inform their clients what they are supposed to do after their signature and seal is placed on the documentation, or (b) ensure that the practitioner himself takes the necessary steps to give effect to the notarisation. In essence, the guide provides for the following general information:

1. What is the Purpose of the Notarisation, and why does DFAT need to be involved?

The purpose of notarisation is to establish the authenticity of a document or item, or information contained in the document, or to take  Declaration or witness that a signature belongs to the person signing a document. However, because an overseas authority will have no objective way to ascertain whether a notary who notarises a document is indeed authorised to certify such a document or item, DFAT will be involved in the process by establishing the notary’s authenticity. A foreign court, administrative body or tribunal will accept that DFAT has the power to declare whether or not a notarial seal is genuine because DFAT has a record of all current notaries’ signatures and seals. When DFAT is asked to place an apostille or authentication on the document that has had the notary’s signature and seal applied, that apostille or authentication attests to the authenticity of that signature and seal. This is why it is essential for DFAT to be involved in the final stages of the notarisation.

2. How do I know whether my Document needs an Apostille or an Authentication?

Whether DFAT applies an apostille or authorisation will depend on the jurisdiction (counrty) to which the notarised document will be sent. Countries that have signed the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (1961) will require the apostille. Generally, all other countries will require an authentication. The ANZCN suggests that these other countries will include China (PRC), Vietnam and most fo the states in the Middle East. It should be remembered that if a notarisation will need an authentication, there is a third step in the process: that document, after obtaining the authentication from DFAT, will then need to be taken to the diplomatic mission of the country it will be presented to, and there it will be receive legalisation.

3. What should I do to ensure that my Document is properly notarised?

Apostilles and Authentications can be obtained by sending the notarised document to DFAT along with a fee. At the date of this post, that fee is set at $80. The fee is payable to DFAT and not the NSW Public Notary. The fee includes binding and return by post, however, if the client wishes to have their documents returned by registered post or express post, a pre-paid envelope will have to be provided along with the document itself (this will not have the effect of reducing the fee payable to DFAT). Providing DFAT with the documentation can be done either “over the counter” by appointment or by post. Clients should allow the authorities a week to process the documentation before it is returned either to the client or the notary.

A Notary Public in Sydney may providing his signature and seal to the client’s documentation, or he may take it upon himself to follow any additional steps so that the documentation is ready to be sent overseas. Either way, the steps above will be essential to complete the task at hand. A notary may chose not to take the additional steps of securing an authentication or an apostille himself so as to keep the costs to the client to a minimum (notaries are entitled to charge for their time and pass on the costs of DFAT onto the client). However, in this circumstance, the client will therefore have to remember that the work of the notary himself constitutes only part of the process of notarisation and acquiring an apostille or authentication will become his own obligation. So that confusion and misunderstanding is avoided, the notary should properly advice and instruct his client what the circumstances require and the client should take heed of this advice before using the notarised document.

For more information about the process involved after the notary has applied his signature and seal to the document, see the following relevant sections:

* In some cases, the requirement of obtaining an apostille may not be necessary. There are Commonwealth countries where the apostille is not needed, such as the United Kingdom, New Zealand and Singapore. It is essential, however, to always check the Notary Public in NSW so that documents are not embarrassingly rejected when they are inspected, relied upon or otherwise used overseas.

Proper notarisation is essential if you want your documentation to be respected by overseas authorities. For more information about whether your material will need an apostille or an authorisation (and legalisation) see your local Sydney Notary so that proper advice can be provided to you. If the notarial act is not recognised by the relevant overseas body, consequences can include dire and long lasting damage to personal and business interests. A Notary in Sydney will be able to provide the necessary services to ensure that your document is treated in the appropriate manner.

ANZCN Biennial Conference in 2018: Announced

The Australian and New Zealand College of Notaries has informed its members that the 2018 Biennial Conference will be held in Osaka, Japan. The advance notice indicates that the Conference will most likely be held in the first week of October, however final dates are yet to be settled. The last Conference was held in New Zealand in 2016 and provided an invaluable opportunity for local and international notaries to network and exchange ideas about the future of the profession as well as provide a venue for members’ professional development. It is hoped that the next Conference will be well attended and that Australian notaries will have the opportunity to familiarise themselves with the notarial profession in Japan.

ANZCN Biennial Conference 2016: Announced

The Australian and New Zealand College of Notaries has announced that its 2016 Biennial Conference will be hosted in Queenstown, New Zealand, between 6 and 8 October 2016. Attendees at the Conference will be able to claim the full 10 credit units for the mandatory continuing legal education requirements for legal practitioners. Further details will be forthcoming in January 2016. For more information, interested parties should contact the ANZCN directly.

Notarial Acts and Intellectual Property

There is a concept known as “poor man’s copyright” where the creator of some work deals with the work in such a way that its date of creation or first use can be traced in the event that authorship may be disputed in the future by a third party. This is intended to evidence that the work was in fact created or used by the original creator or author before a third party claims to be the rightful owner or creator of the intellectual property.

A classic example is an author who mails a copy of his written work to himself and does not open the parcel; in the event that a third party plagiarizes the work or attributes its own authorship to it, the parcel can then be inspected: the date stamp along with the contents are then adduced as evidence that the work was first created by the original author at an earlier date. Unfortunately, the risk that this “evidence” can be easily manufactured or tampered with means that this kind of proof of first authorship is seldom held as conclusive evidence in support of the original author’s case.

However, it is not inconceivable that an individual may have some form of intellectual property and not be in a position to register it according to the ordinary processes associated with trade marks, trade secrets, patents or copyrights. This difficulty may arise because of momentary financial constraints or because he is still in the process of obtaining advice on the proper processes involved. Given the continued internationalisation of trade and commerce, it is easy too imagine that an individual may want to urgently create at least some basic protection over his intellectual property so that he can legitimise his claim of ownership if a future dispute were to arise before it was properly registered overseas.

In this situation, it is possible that a notary public could – depending on the nature of the intellectual property – provide his services so that the trade mark, trade secret, patent or copyright is notarised under a notarial certificate which would attest to the existence of the intellectual property at the date of the notarial act. It may be necessary for the public notary to make additional preliminary inquiries before the notarisation is provided. The certification would generally and ordinarily take the form of a declaration with any relevant exhibits, where that declaration is signed by the person seeking the protection of his property and witnessed by the notary.

This document, once it has the necessary apostille or legalisation applied, may be tendered before a foreign court, tribunal or administrative body as evidence of the facts as asserted in the declaration, however – and this cannot be emphasised strongly enough – the notarisation alone is no guarantee that the intellectual property is secured and protected under the legal provisions of the foreign jurisdiction. All that the notarial act would evidence is that a person appeared before the notary and asserted a claim, and the basis of that claim with respect to certain intellectual property, and a description of that property, only. The notarisation will not provide any further force to the individuals’ claim in the even of a future dispute.

It is therefore absolutely imperative that anyone seeking to have their intellectual property secured through the use of a notarial act or certificate not rest on this as the ultimate form of protection – it is no final protection and only provides a preliminary basis of a claim that could evidence original ownership over the intellectual property. The notarisation will at best be an interim form of protection before the trade mark, trade secret, patent or copyright is properly registered under the relevant IP legislation.

It should be further noted that notarial acts and certificates produced in common law jurisdictions, such as Australia, may not have the same authoritative force in other jurisdictions, such as those of latin states or civil law countries. While the local notarisation may provide persuasive weight behind a claim of authorship overseas, other administrative or legal processes will likely be necessary before the property is protected at law in that other jurisdiction.

Those who want to secure their intellectual property right should initially seek the services of a patent attorney or IP lawyer before making any decisions with respect to their personal or business assets.

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.

The Notarial Act – An Instrument of Investment Security

Revista internacional del notario 119The following is a summary and commentary of a paper that appeared in issue 119 of Revista Internacional del Notariado by Lionel Galliez.*

As mentioned in our brief report concerning the publication of that issue, Lionel Galliez was the recipient of the André Ducret Award for the best scientific contribution to the notarial practice in the 2012 Congress of the Unión Internacional del Notariado (International Union of Notaries) for the presentation of his illuminating paper.

It should be noted from the outset that Lionel Galliez’s paper is drafted from the perspective of the civil law notary. He states that:

The notarial act does not influence the profit  that an investor will make, but it does help reduce and control the risks. Risk control thus forms the basis on which to assess what the notarial profession can offer investors and to distinguish it from the competing models proposed in traditionally Anglo-Saxon nations.” [p. 225]

Reflecting on a recent report from the French notarial profession, Galliez suggests that – based on an “economic analysis of the law” – the notarial profession “guarantees investors optimal legal certainty” [ibid.]. Galliez therefore embarks on a comparative analysis between the notarial framework of civil law and common law jurisdictions in relation to what they can offer investors business interests. His paper focuses on three types of contracts [p. 228]:

  • Sale of property;
  • Loan agreement; and
  • Lease agreement.

In light of the broad ranging contractual typology above, investors will encounter different kinds of legal risks which are associated with different kinds of agreements; those agreements will define the particular commercial investments with is being entered into and secured. Galliez states that:

Out of the different kinds of risks, a risk can be described as legal if the threat weighing on the investor results from a legal relationship. The notarial act only has a direct influence over that sort of risk, because controlling legal risks is the core business of notaries.” [p. 225]

Galliez’s analysis reveals that there are four basic legal risks that arise from the consequences of the following [p. 230]:

  • Loss of or delay in the collection of funds;
  • Increase in the costs born by an investor;
  • The depreciation in value of an asset; and
  • Reduction in the value of, or loss of, asset liquidity.

These risks will precipitate financial loss on the part of the investor, and the notarial profession (in civil law countries) can assist in mitigating or avoiding those risks because “the notarial act is much harder to contest than a private writing” [pp. 225-226]. What Galliez is suggesting here is that parties to a notarised agreement will feel more inclined to discharge their respective obligations and duties by reason of the fact that the agreement, once notarised, carries with it greater legal or evidentiary weight; in other words, it is “difficult, and even risky, for them to dispute the value of the instrument” [p. 226].

This is because, as a general proposition, the role and status of the notary public in civil law countries is greater than that of public notaries in common law countries: a civil law notary has what may be perceived from the common law perspective as almost a quasi judicial function; a notarised act, although it certainly can be contested in legal proceedings, is in-and-of itself strong evidence of a fact or proposition. Galliez states that “this quasi-incontestability [of the notarial act in a civil law country] is constituted ab initio, without the need to confirm it by the posteriori intervention of a judge” [ibid.]. Furthermore:

Probative value secures transactions as it makes it easier for the parties to make reasonable forecasts. It reduces  the risks of disputes and is thus a factor of trust which encourages the parties to enter into agreements. The security it provides helps dispel the reluctance of people who fear that the terms of the exchange will be challenged after its conclusion.” [ibid.]

It appears from the text of Galliez’s paper that a notarised agreement in civil law countries is considered to be better evidence (in the event a dispute arises) than an agreement between parties itself. Galliez’s terms of reference is notable: “[t]he mere existence of the title deed [i.e. the notarised act] is a factor that adds value to the asset” [ibid.]. The intervention of a notary into the commercial bargain between parties therefore enhanses the trust  between the operative parties because the terms of the agreement being entered into are “checked” for “balance” and “effectiveness” by a profession that is “strictly regulated and controlled” [ibid.].

The contrasts between the notarial function in civil as opposed to common law countries becomes evident. The civil law notary is expected to provide legal and other advice that the common law notary may be reluctant or even professionally prohibited from tendering to his client. In contradistinction to the notary of the “Anglo-Saxon” jurisdictions, Galliez states that the civil law “notary’s role is not that or a mere attestator; he actively contributes to the effectiveness of the act he certifies” [ibid.]. The notary public in the civil law jurisdiction is effectively involved in the creation or amendment of the terms and provisions of the commercial relationship between the parties who seek his services.  As such, the notarial act will bring with it the legitimising force of an impartial authority whose intervention imports a higher level of probaty to the terms of that relationship.

* The paper, as published in the aforementioned journal, can be cited according to the following convention: Lionel Galliez, “The Notarial Act – An Instrument of Investment Security” Revista Internacional del Notariado No 119 (December 2013) pp. 223-230 (English Translation); Lionel Galliez, “L’Acte Authentique Notarial au Service de la Sécurité des Investissements” Revista Internacional del Notariado No 119 (Décembre 2013) pp. 215-222 (French translation); Lionel Galliez, “El Documento Notarial al Servicio de la Seguridad de las Inversiones” Revista Internacional del Notariado No 119 (Diciembre 2013) pp. 207-214 (Spanish translation). The above is a summary of some key facts and salient points of interest; for more information about the issues discussed here, readers are strongly advised to refer to the original paper, as published.

Additional Comment

The civil law notarial system described by Galliez does appear to have its advantages insofar as it creates an environment in which contractual relationships between parties are ‘reviewed’ – so to speak – by an impartial professional with a view to achieving an equitable relationship between the parties. Indeed, this could be achieved in common law jurisdictions by way of obtaining independent legal advice on a contract (and advice from any other professional, such as an accountant, financial planner etc.). However, in the event that a term of the contract was ever to be disputed in court, such legal advise would not confer the weight of a “title deed”, in Gallez’s language, vis-a-vis the contract, despite the high professional standards expected of legal practitioners by the public.

Obtaining legal advice in the common law jurisdictions does not have the same effect as having a contract notarised by a civil law notary. Galliez’s paper therefore provides a useful comparison of the notarial profession between civil and common law countries. The common law jurisdictions do not have a comparable institution that can provide the certainty and impartial assessment of proposed commercial transactions in the same way that might be available through the operation of a notary in civil law jurisdictions.

To this reviewer, the difference between the civil and common law systems appears to be a function of a different legal culture in which similar commercial interests are mediated – and the legitimacy of same is established – through different institutional norms: whereas in the common law system these interests are pursued in the private sphere and only become subject to external legal authority if and when a dispute arises between parties, the civil law jurisdiction seems to favour a paradigm whereby private interests are ‘legitimised’, as it were, through the intervention of an external quasi-legal authority before duties, obligations and responsibilities inter partes in fact arise.

For more information on what a Sydney Notary Public may offer to a local or overseas business that wants to secure its commercial interests, see our section on Services Offered.  Notary Public in Sydney may, in some situations and depending on the location of the client or his business, be able to visit a client’s office to provide notarial services. For more information on the extent of our mobile notary, see our brief on Availability. More information for potential clients can also be found at Client Conferences and Distance Instruction as well as Foreign Language Documents.

Revista Internacional del Notariado (No. 121, First Semester 2015)

Revista internacional del notario 121The 121th issue of the Revista Internacional del Notariado, published by the Unión Internacional del Notariado (International Union of Notaries) has been released. This issue contains few entries in English however those that are included may be of particular interest to the Australian notary public, such as the presentation concerning the cross jurisdictional use of notarial acts within and between common law and civil law countries.

This issue opens with a few words from the ONPI’s President Águeda L. Crespo, who, speaking of the role of public notaries throughout the turbulent and divided world, emphasises that “Legislative comparison is currently more and more legitimate as an actual practical necessity for modern legal agents.” He states that the intention of the journal is to provided different scenarios to international notaries that highlight the difficulties and opportunities that may arise in the present climate, so that they may obtain a “global vision of a different approach to each legal situation arising before them.” He adds:

Consequently, the current positive law of any given country consists more and more of supra national rules, and only comparative and international law studies will give us a more complete understanding of the subject matter.

The two other articles that have been provided in English concern problems encountered with the circulation and use of notarial certificates across borders and between jurisdictions (particularly concerning the lack of any universal definition of what constitutes or what is a notarial act) and a report on the disciplinary framework governing the notarial practice in various states and legal jurisdictions:

  • Dr. Jeffrey A. Talpis, “The Cross-Border Circulation of Notarial Acts”, Presentation to the Australian and New Zealand College of Notaries, October 2014. [pp. 87-99]
  • María Cristina Planells (rapporteur), “The Disciplinary System in the European Notariat”, Report of the European Affairs Commission, 22-23 November 2013. [pp. 127-135]

Notaries in Sydney Australia may find the presentation of Dr. Talpis of particular interest, as would government policy analysts and law reformers who would benefit from the analysis of how different municipal legal codes treat notarial certificates. A review of the above articles may be published in a future post, time and resources permitting.

For more information about how we can notarise your international documents (i.e. documents that will be used overseas) contact us on the details provided here to arrange an appointment with a Sydney notary public. Foreign documents – forms, deeds, agreements or other materials that are to be adduced before foreign courts of administrative bodies – can be notarised locally for use use outside of Australia. In some circumstances, a public notary in the greater Sydney region may be able to come to your office to provide his services (see our section on local Availability for more information).