Problems with Clients Based Overseas

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Notaries are not obligated at take work from prospective clients. Indeed, notaries should be wary of clients who ask for services where the objective or purpose of the notarisation is uncertain or may be a cause for suspicion. A recent client who approached NotarialServices.com with a request for professional assistance related to an overseas legal matter is an example of problems that may arise when taking on a client who is not entirely forthcoming.

Basic Facts:

  • The client was a law firm incorporated overseas, which was engaged in litigation the details of which they were reluctant to disclose to the notary.
  • The client requested that the notary provide a notarial certificate in the public form in which the notary were to declare the veracity of a purported fact.
  • The purported fact was that an overseas company acquired certain interests of another company which had an office located in Australia.
  • Information that the client supplied to the notary included a number of voluminous documents including company reports and press releases in which the acquisition as referenced, as well as an ASIC search on the local company showing its details.
  • The notary indicated that he would have to engage in an investigation to ascertain the veracity of the alleged acquisition; he provided a quote for his services capped at a low rate. The client accepted this quote.
  • Investigations were conducted, however the notary was not able to decisively and conclusively state that the acquisition as purported by the client and as described in the documents provided took place: the fact of an agreement to transfer interests between companies is best evidenced by inspecting the transition documents themselves – neither company was willing to disclose these documents as a matter of policy (one company refused to respond to numerous attempts at being contacted).
  • The client said that they would make payment on the agreed amount after the notarial certificate was drafted and sent to them – the notary said that he would have to be paid before any certificate could be completed and send for an apostille and legalisation.
  • A first incomplete draft of a notarial certificate was provided to the client to illustrate the format that the final form might take, but the client objected to parts on the basis of that the language being used was qualified. The notary indicated that the language would be adjusted to reflect the documents that were available to evidence the transaction between the companies.
  • After asking for further clarification from the client as to the availability of the contract documents evidencing the transaction, all communications ceased. No payments from the client to the notary were made.

Discussion:

A notary should only ever notarise a document that he has personally witnessed, viewed, and perused himself. In this situation, while various public company documents and an industry journal made explicit reference to the acquisition that the client wanted notarised, the notary would not be able to provide the notarial certificate in the form that the client required without seeing the contract itself. Indeed, even inspecting such a document may be insufficient without ascertaining the identity of the purported signatories and the integrity of the signatures or company seals apparent on those documents. In this case, the notary took all the steps he could to assist the client and meet its needs. But notaries should never feel coerced into providing their services without knowing that those services are being offered at best-practice level and to the standards expected of a legal professional.

Conclusion:

This particular case was an example of two issues that notaries may encounter in their practice.

  • The difficulties and risk associated with complicated notarial requests: if a client is not forthcoming in providing clear and detailed information relating to the circumstances in which the notarial act is being requested, the notary should be very careful before providing any service. In this case, an investigation had to be conducted before providing any formal notarial services to the client. The investigation that was undertaken only served to cast further suspicion on the client’s request. The client’s silence after being requested to clarify certain facts pertinent to the production of the notarial certificate indicated that the request was not entirely being made in good faith.
  • The difficulties of providing notarial services from an overseas client without prepayment of at least part of the agreed upon costs: in this situation, the notary engaged in an investigation that took time and effort, including numerous attempts to contact various parties by drafted letter, email and telephone. The notary also prepared a first draft of the certificate for the client’s perusal. A notary’s time is valuable. While the client discourteously “dropped” the notary who had already completed a substantial portion of his work, that work has gone without remuneration, and there is no hope of recuperating the amount on a quantum meruit It is for these reasons that prepayment is required for notarial services provided to overseas clients.

Notarial Services Update for July 2018

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Please note that our Notary Public will be in Japan on business for the entire month of July, 2018; no notarial services will be provided to clients in that time. However, new inquiries can still be sent via the contact form on our website; notarisations will be available in August. If an existing client has a notarial certificate in process of being completed, rest assured that this will be finalised before the end of the month.

Fundamental Principles of the Indian Notarial System

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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.

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

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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.

The Cross-Border Circulation of Notarial Acts

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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.