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.

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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.

ANZCN 2014 Conference: Honolulu Hawaii

ANZCN 2014 ConferenceThe Australian and New Zealand College of Notaries has given notice of its 2014 Conference, which is to be hosted at the Kahala Hotel and Resort, Honolulu, Hawaii on 23 to 25 October 2014 under the title of “Working with the Americas.” Some notable presentations that will be of interest to Australian notaries public include:

  • Daniel-Sedor Senghor, “A new relationship between civil law and common law notaries” (scheduled for Friday 24 October at 9:30 to 9:50) [this presentation is made from the perspective of the civil law tradition; see the presentation of Ken Sherk the following day at 9:30 to 9:45 for the common law perspective]
  • William Fritzlen, “Authenticating US notarial acts, and dealings with the State and Territory notary administration” (scheduled for Friday 24 October at 10:25 to 11:00)
  • Mia Harbitz, “Civil registration – a  neglected dimension of international development” (scheduled for Friday 24 October at 12:00 to 12:30)
  • Joseph Lukaitis, “Who are you with whom I am dealing?” (scheduled for Friday 24 October at 12:30 to 13:00)
  • Prof. Heather MacNeil, “The evolution of written records and trusting records in a post-modern world” (scheduled for Friday 24 October at 12:00 to 14:00)
  • Tim Reiniger, “Electronic notarisation in the USA” (scheduled for Friday 24 October at 14:30 to 15:00)
  • Ron Usher, “Electronic record keeping” (scheduled for Friday 24 October at 15:00 to 15:30)
  • Ken Sherk, “A new relationship between civil law and common law notaries” (scheduled for Saturday 25 October at 9:30 to 9:50) [this presentation is made from the perspective of the common law tradition; see the presentation of Daniel-Sedor Senghor the previous day at 9:30 to 9:50 for the civil law perspective]
  • Prof. Jeffrey Talpis, “Cross border circulation of notarial acts and other aspects of conflicts of law” (scheduled for Saturday 25 October at 10:15 to 10:45)
  • The Hon. J. D. Rooke, “Organised pseudo legals, including the regrettable involvement of notaries in their documentation” (scheduled for Saturday 25 October at 11:30 to 12:00)

This is not an exhaustive list of the scheduled presentations; the selection has been made only in light of what the Australian notary may find illuminating and informative. Other guest speakers and presenters at the conference will include Dr. Christopher Bernasconi, Wane Baird, Michael Bula, Prof. Kathryn Burns, William Fitzlern, Assoc. Prof. Maria Marta Herrera, Sue Marshall, Milt Valera and Prof. Peter Zablud. The College should be contacted directly for more information as to how local notaries in New South Wales may reserve a ticket for the Conference.