Duncan Bateson Partner
Bulletin 6: Notaries
In this week’s bulletin we look at the situation in various jurisdictions in relation to notary services.
The social distancing and remote working measures implemented worldwide essentially undermine the role of a notary as a witness and a verifier of identity as their work (usually) relies on meeting their client in person and being physically present for the signing of documents they are being asked to notarise.
As many countries start to ease lockdown, in this week’s bulletin, we look at how notaries in different jurisdictions are overcoming these new obstacles as local laws and regulations allow.
[The information provided was correct as at 12 May 2020]
In the majority of these jurisdictions, notaries are constrained by social distancing and remote working. This presents problems both in terms of the verification by the notary of the identity of their client (the signatory) and in terms of witnessing the execution of the documents they are being asked to notarise.
For the purpose of verifying the identity of new clients, notaries in these jurisdictions may be prepared to rely on the client due diligence carried out by the client’s solicitors, preferably accompanied by a certified copy of the client’s ID and signature. The precise requirements will be on a case by case basis.
Notaries are generally willing to witness the execution of a document via a video call. As long as the document is being executed within the notary’s jurisdiction, the original (wet signature) document(s) can then be sent to the notary wherever they are working, so that the notarial certificate can be attached in the usual way.
In the case of existing notarial clients, i.e. those the notary has previously met with and for whom they hold their ID and a specimen signature on file, again as long as the document is executed within the notary’s jurisdiction, a document can generally be executed and notarised without the notary seeing them sign. The original (wet signature) document can then be sent to the notary for the certificate to be attached. In some Red Ensign jurisdictions, such as the UK and Cayman Islands, notaries are also offering their existing clients the option for electronic execution and electronic notarisation of documents via secure systems such as DocuSign.
In the case of documents executed in the UK, the FCO has recently recommenced accepting documents for apostilling, but without the usual express service. For documents that have been executed and notarised electronically in the UK, the FCO requires the e-notarisation to be accompanied by a traditional notarial certificate confirming the authenticity of the underlying electronic document.
Notaries have been required to keep their offices open throughout the pandemic. In fact, being public officers, their services must be guaranteed at all times under Italian law. The current Italian lockdown restrictions may however impact on their clients’ ability to attend their offices; for example, where a client would be required to move across Italian regions to attend the notary’s office, digital POAs are to be preferred where possible and clients should attend in person only if the matter is urgent (and a declaration is to be provided by the client, proving the necessity).
The guidelines provided by the “Notariato”, being the representative society for the Italian notaries, indicate that clients should attend the notary’s office only further to an appointment.
Where a party requires notarial acts to be used internationally and hence requires the assistance of the Italian Courts, and of foreign Embassies or Consulates, delays are likely to occur as many of these bodies are either closed to the public or provide only emergency services. Apostilles in this context are issued by an office of the Italian Courts. Even though the Italian Courts have been mostly closed from 9 March until 11 May, we note that some offices were nevertheless able to provide apostilles on an emergency basis, whilst others remained completely closed. New guidelines have just been released in relation to the operation of the Courts up to 31 July 2020; given that the Italian regions have been impacted by the pandemic in different ways, the procedures adopted by the Courts seem to vary across the regions, but overall we note that the Courts will be operating at a reduced capacity until then.
Since 18 March 2020, and to fight the COVID-19 epidemic, French notary offices and notarial bodies have been closed to the public but approximately 90% of them can be reached remotely. They are mobilized to ensure the continuation of the public service of justice and to respond by email, telephone and video conference to customer requests.
It is, however, noted that any notary services which do not present any degree of urgency must be postponed. The profession is working hard to establish remote appearance via video conferencing. The official website of Notaries of France states that only proven emergency situations warrant a physical meeting provided that one has a certificate and complies with the necessary safety instructions.
Notaries are now back to working ‘as normal’ in Greece. As a general rule all people are supposed to keep a distance of 2 meters apart and one assumes necessary social distancing measures will be in place in each notary office for such appointments.
An apostille can only be obtained after 15th May 2020, when the Courts will reopen. It is expected that the relevant departments will be overwhelmed, thus an appointment may be required.
Notaries in Germany are governed by the rules of the Bundesnotarkammer (federal governing body) and the local state Notarkammern (local governing bodies) in accordance with statute law. They are considered to be system relevant for the functioning of the commercial – and legal life of the state.
Therefore all notaries continue to be open for business as usual. They are however required to adhere to the legislation currently in force to minimize the spread of the Corona virus. Certain exemptions apply to notaries such as the obligation to wear mouth/nose masks by the notary and the parties concerned in the notary's chambers as this may hinder the comprehension of the legal texts and advice that are discussed and agreed in the notary's presence.
Already, prior to the Corona pandemic, certain rules were in place such as allowing parties to attend the notary's office separately for the legalisation of documents, contracts etc. The notaries are asked to remind clients of these possibilities when making appointments. The use of videoconferencing in order to achieve a legally binding notarisation is prohibited.
In summary no change, business as usual.
There are no special notices or announcements issued by the College of Notaries of Malta or the Maltese government regarding the notarisation of documents.
Some notary offices are open and others are closed, therefore notarisations are achievable. Unfortunately, the Foreign Affairs Department is closed until further notice. Therefore the legalisation of documents might be an issue. Nevertheless, some colleagues in Malta managed to make appointments and get all apostilles.
Marshall Islands (MI)
There are no governmental announcements or notices available regarding notarisation in MI.
In some locations and for documents to be submitted to the MI ship register, it is still possible to make an appointment to have documents acknowledged by a Special Agent or Deputy Commissioner in person. In places where the physical appointment is not possible, the Special Agent or Deputy Commissioner can witness signatures over video calls and issue acknowledgments following a particular process. In case that this is not possible, a lawyer may acknowledge a signature, always following the procedure required by the ship registry.
The notarial service is a public service of general interest whose provision must be guaranteed throughout the national territory. In this regard and as a consequence of the state of alarm declared by the Spanish government, the General Directorate of Legal Security and Public Faith, in coordination with the Spanish General Council of Notaries, has issued on 15th March 2020 an instruction on the adoption of measures to ensure the adequate provision of the notarial public service.
According to such instruction the Spanish notarial public service is now limited to urgent matters and those specified by the government. Therefore the notary shall refrain from making appointments for matters that are not of this nature.
Each notary shall provide a telephone number to contact the notary and an email address so that the interested person can submit his/her application for an appointment. The notary will determine whether the specific case is urgent or not in accordance with the Royal Decree 463/2020, of 14 March, declaring the state of alarm for the management of the health crisis situation caused by the COVID-19, i.e. in cases of force majeure and situations of need.
It goes without saying that as lockdown eases in each country so will the accessibility and availability of notaries improve and the position set out above will evolve.
We would like to thank our colleagues and contacts in the various jurisdictions for providing a brief summary of the local arrangements prevailing (at least until recently) on which this note (which is not legal advice) was based. However, should you have any queries regarding the above please contact any of us from the Ince yacht team; we will be pleased to assist you.