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Avoid rejection: successful international document authentication

Feature Articles

Cite as: (2005) 79(7) LIJ, p. 50

Failure to follow the necessary processes for having documents recognised internationally can result in rejection of the documents, a waste of time and unnecessary cost.

By Professor Phillip Hamilton

Lawyers involved in international transactions with countries which are neither English-speaking nor common law jurisdictions quickly discover that there are major differences in legal institutions. In Australia, for example, we are accustomed to taking evidence on affidavit, and to verifying documents by direct certificates of institutions and corporations. Most of the world – in both area and population, if not in the bulk of commercial transactions – operates quite differently.

Civil law countries

The civil law countries are those which derive their legal systems from a civil code. France set the seal on civil law in the early 19th century, followed by Germany and the rest of Europe. Since then, the French and German civil codes have been exported to numerous countries in Africa, Asia, virtually the whole of South America, the French portions of Canada, Louisiana, Japan, Turkey and China.

The civil law notariate

In all civil law countries, the function of verification, authentication and record-keeping is performed by notaries. In the old civil law countries such as France, Germany and Spain, admission to the office of notary is extremely competitive. In Germany, for example, while the top 10 per cent of graduates may be eligible for appointment as judges, only the top 5 per cent are eligible for admission to the further studies required to qualify as notaries. Even after passing the final examinations (which are in the nature of a higher degree), a position may not be open because the numbers are strictly controlled. Once installed, however, their fees are legendary, as is their aloofness.

The role of notaries is to authenticate documents, to certify copy documents for use in commercial transactions, and to certify the fact of the appearance of the transacting parties before them. Notaries also conduct conveyancing business and incorporate ”.

The common law notariate

Notaries public in English-speaking countries where the notary’s role is taken seriously have similar functions to civil law notaries. This does not include notaries public in the US, because there (with the exception of Louisiana which has civil law notaries) there is no requirement that “notaries public” have any legal qualifications. Alabama and Florida, recognising the commercial need for legally qualified notaries in international transactions, have created a new category of “civil law notaries”, who must also be members of the state Bar.

The notariate in China does not comprise legally qualified members either, but then, neither necessarily does its judiciary. Regulation of the Chinese notariate is likely, to deal with the problem of notaries who are not lawyers.

Unqualified notaries

While persons who lack legal practice qualifications may be admitted as notaries in England and Wales (but not Scotland, which has Roman-Dutch law), the requirements under the rules for admission as notaries are almost identical to those for admission as a solicitor.

A real problem arises in the American-German dichotomy. German notaries refuse to accept documents attested by American notaries public because they lack the legal knowledge necessary to determine whether an act has validly fulfilled the law.

The civil law notaries now appearing in the southern states of the US address this problem, but the important commercial states such as New York, Delaware and California have not come to grips with the issue.

The role of the Australian notariate

It is often necessary for Australian businesses to provide documentation to foreign governments or trading partners. To be acceptable in a civil law country, the documentation must be properly verified (or “notarised”).

Typical documents which require notarisation include:

  • intellectual property registration applications;
  • bills of lading;
  • certificates of origin of products;
  • copies of executed contracts;
  • references and credentials;
  • copies of passports and identity documents;
  • copies of university diplomas and academic records;
  • corporate constitutions, certificates of incorporation and director lists;
  • certificates of statutory authorities;
  • certificates of execution by corporations, and as to validity and enforceability of their acts;
  • certificates of good standing of corporations;
  • certificates as to the absence of convictions; and
  • statutory declarations by company officers.

While not all of these may appear to be relevant to commercial transactions, most of them are regularly required to perfect international commercial arrangements.

Notaries usually prepare these documents because they generally have knowledge and experience of the forms which will be favourably received in the destination country. In particular, they are familiar with documents in the civil law public form which gives significant advantages over private form documents. Documents prepared by notaries and attested by them are recognised in most countries, subject to legalisation.

It should be noted that there are many documents which do not require notarial intervention. These are other categories of “public documents”, and include original certificates issued by government offices and departments. They may be legalised directly in the legalisation process by either a foreign consulate or by the Department of Foreign Affairs and Trade (DFAT). There is usually a reduced fee for these legalisations.

Obligations of the notary

Not only must notaries attend to the drafting and attestations required, as well as the completion of the requisite entries in their registers, but the addition of their signatures and seals lends confidence that the transaction has been validly completed, and the impressed seal and ribbons make fraudulent interference with the finished notarial act difficult, without destroying the document.

Many legal practitioners seem unaware that it is vital to present the notary with the original documents. Notaries cannot and must not seek to verify anything that they have not seen or had proved to their satisfaction.

Often a corporation needs to verify copies of documents of which executed original copies do not exist in Australia. In such cases, the notary may be able to extract sufficient information from other records and copy documents held by the corporation to be able to prepare a declaration, for an officer of the company to make in the presence of the notary, which verifies those facts and things of which the notary is personally uninformed. When prepared in accordance with usual notarial practice, such declarations generally fulfil the need.

Legalisation procedures: consulates

Notarisation of the documents is not always enough. In many cases it is also necessary to have the notarised documents “legalised”.

Until Australia became a party to the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents of 1961 (now generally referred to as the Apostille Convention), legalisation was invariably through the offices of the consular section of the destination country.

After notarisation, the document was sent to the consulate (or the consular section of the embassy) of the destination country where, on payment of the fees applicable in that consulate, the document would receive a consular seal confirming that the notary who prepared the document was a notary whose particulars were recorded in the consulate.

Few consulates exist in Melbourne with jurisdiction to legalise documents. Honorary consulates seldom have this responsibility. Most of the relevant consulates are in Sydney. An increasing number of consulates are closing down, so that applications for legalisation will need to go to the consular section of the country’s embassy in Canberra. Since the bureaucratic procedures are time-consuming, many foreign delegations decline to attend to them at all. This is especially so in the case of countries which have now acceded to the Apostille Convention, since the apostille obviates the need for consular legalisation altogether.

Unfortunately, some embassies pay scant regard to applications for legalisation. I recall a case in which a certain embassy, notorious for its red tape and general lack of cooperation, lost the first set of documents I submitted, then took six months to return the second lot, and then they had been imperfectly legalised. Resort should be had to security post, and overnight satchels should be provided for the return of documents after legalisation.

Consular fees for legalisation vary widely from a few dollars to several hundred for the identical service. Most of these fees must be paid in advance at the time of lodging the documents, often by way of bank cheque or postal order, and with a reply-paid envelope for the return of the documents.

On occasion, consulates require that documents be translated into the language of the destination country. This is a strong argument for having them prepared in that language in the first place, which many notaries are able to do.

Legalisation procedures where no consulate exists

There are many countries which have no diplomatic or consular posts in Australia. If the country is or was a member of the British Commonwealth, normally no legalisation will be required. The Australian notary’s certificate will be enough. Some will require an apostille (see below).

However, a major difficulty exists when dealing with countries such as the former Soviet Socialist Republics, which are now independent. For example, Uzbekistan has no diplomatic posts in Australia. In such a case, there are two possible courses:

  1. Uzbekistan will accept legalisation by a Russian consulate. This is still a problem, because Russia has now acceded to the Apostille Convention and therefore does not carry out legalisation functions, even for its own nationals. A Russian consulate in another country may be able to assist, but this is doubtful.
  2. Submission of the documents to the nearest Uzbek embassy could solve the problem, but since the nearest ones are in Jakarta and Tokyo, there are obvious difficulties of distance and time if the matter is urgent.

Many other countries will fall into this lacuna, and variations on the suggested courses will probably offer the simplest and quickest solutions.

Legalisation procedures: apostille from DFAT

“Apostille” means “footnote” in French and was adopted as the name of the stamp to be added to notarial documents because France co-sponsored the proposal.

The apostille in use in Australia is affixed by a rubber stamp which is then completed and signed by an official of DFAT at any of its offices around Australia.

After notarisation, the finished public document must be presented to the Authentications Section at DFAT (Level 14, Casselden Place, 2 Lonsdale Street, Melbourne). The current fee for an apostille is $60.

If the document is merely required to be authenticated by DFAT before presentation to the consulate of a country which has not acceded to the Apostille Convention, the fee is $20. An authentication stamp does not satisfy the international requirements for legalisation when dealing with another country which has acceded to the Apostille Convention. An apostille must be obtained in these cases.

After legalisation, the public document is ready for transmission to the destination country.

Conclusion

There is no great complexity in the process for having documents recognised internationally, but an appreciation of the two or three necessary steps will ensure proper completion of the documents, as well as their arrival in a form enforceable in the destination country. Failure to observe them often results in the rejection of the documents, loss of time while they are returned for correction and added expense.


PROFESSOR PHILLIP HAMILTON is a solicitor, Associate Director of Notarial Practice, Sir Zelman Cowen Centre for Continuing Legal Education, Victoria University, Melbourne and an accredited business law specialist. He is also the honorary consul for the Republic of Mali.

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