What is a Notary and why are they important when conducting Overseas Contracts

It is quite common that when a document is required overseas and as part of an international transaction, people come across words such as “notarisation”, “legalisation” and “apostille”.

Below is a summary of the importance of Notaries.

Notaries play an important role in overseas documents and international transactions as many documents, including the gravity of power of attorneys and some deeds, will require the witness signs in the presence of a notary public. The Notary will often verify the signature of the signing party and also their capacity to sign the document.

The status of Notarial Acts differs between jurisdictions. In English (common) law, notarial acts commonly have evidential status in English courts as per Rule 32.20 of the Civil Procedure Rules:

“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.”

On the other hand, in civil law jurisdictions (such as Germany, France, Turkey) notaries have a comparatively broader role and notarial acts generally have executory force. In other words, a duly notarised document is enforceable as a court judgment and this feature usually accelerates enforcement. In their jurisdictions, notaries are often seen as “quasi-governmental” officials and alongside its notarial duties, collect taxes to be paid on documents on behalf of the state.

As explained above, the roles and responsibilities of notaries differ between jurisdictions. However, the common ground between different jurisdictions is that the notaries provide service to private individuals and companies engaging in international commercial transactions by following written rules when conducting notarial acts.

According to the Notaries Society, the most common tasks undertaken by notaries include1 :

  • Preparing and authenticating powers of attorney for overseas use;
  • Dealing with purchase or sale of land and property abroad;
  • Authenticating foreign wills and providing documents to deal with the administration of the estates of people who are abroad, or who own a property abroad;
  • Authenticating personal documents and information for immigration or emigration purposes, or to apply to marry or work abroad, such as education or professional qualifications or declarations of freedom to marry;
  • Authenticating company and business documents and transactions or providing certificates as to the status of a company or the identity of its directors.

If a document requires a notary’s signature and seal to be a certified, as genuine (legalisation) or apostilled, failure to do so may result in unenforceability of such document whether or not the user’s jurisdiction is a civil law or common law jurisdiction.

If there is uncertainty on whether a document requires legalisation, notarisation and/or apostille, the advice from a foreign counsel of the recurrent jurisdiction is required to determine whether the document will be valid for its proposed use.

In order to find a notary, the search function on the Notaries Society website is useful where a search by town, city, postcode or surname can be made: https://www.thenotariessociety.org.uk

If additional expertise in foreign languages is needed, owing to their unique qualification process and training, including proficiency in foreign languages, scrivener notaries are able to identify, understand and apply the principles and rules of various legal systems.2 Scrivener notaries mainly practise in the City of London and contact details are available at: https://scrivener-notaries.org.uk/services/

1 The Notaries Society Website. [Online] Available from: https://www.thenotariessociety.org.uk/pages/what-a-notary-does
2 The Society of Scrivener Notaries Website. [Online] Available from: https://scrivener-notaries.org.uk/services/

If you would like any more information in relation to this article then please feel free to contact me via email: mailto:cemre.koroglu@bowlinglaw.co.uk or visit my profile.

Website content note: This is not legal advice; it is intended to provide information of legal interest about current legal issues.

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