Issue 4 Highlights Notaries and Signature Verification

Issue 4, March 2013
Francesca Giannoni-Crystal, Vice-Chair of the Europe Committee
responsible for publications, and Guest Editor Werner Kranenburg (Europe
Committee Vice-Chair for Policy), bring to publication this fourth issue of
EUROPE UPDATE, the “hot topics” newsletter of our Europe Committee of the
American Bar Association’s Section of International Law. This issue presents
materials on notaries and verification of signatures in cross-border practice, with
a view to law reform discussion, taking up a proposal of the US Lawyers
Practice Abroad Committee and extending it to incorporate consideration of
notarial practices in various common and civil law jurisdictions, with attention to
the Hague Apostille Convention and the Vienna Convention on Consular
Relations. The members of our Europe Committee working group on notaries
have found the comparative and international aspects of this project
informative, as well as the contact with representatives of the Uniform Law
Commission, the US State Department, the US Lawyers Practicing Abroad
Committee and the leadership of our Section. We hope that you do as well,
and take them as inspiration for further Europe Committee initiatives.
Look for our Europe Committee leadership and members at the upcoming
Washington, DC April 2013 meeting of our Section. Our Committee
contemplates a committee dinner, and a committee breakfast, followed by an in-
person Committee business meeting, that members not in Washington may join
by conference telephone. Time and bridge number information are distributed
through the Europe Committee listserve. Except for April, look for our
monthly calls the first Tuesday of each month at 11 am Washington, DC/5 pm
Paris time.
We warmly welcome outreach from Europe Committee members who would
like support in becoming more active volunteers in the work of our Committee.
Patrick Del Duca, Florian Jörg, Europe Committee Co-Chairs
Message from the Europe Committee
A Note from the Editors
© 2013 ABA all rights reserved.
This issue highlights the work of our Committee’s policy group on notarization of
signatures, convened under the leadership of Europe Committee Vice-Chair and
Policy Officer Werner Kranenburg. It also serves as Continuing Legal
Education material for the panel presentation at the Section of International Law
Washington DC 2013 Spring meeting on notaries and cross-border practice.
Look for further issues of our Europe Committee’s HOT TOPICS NEWSLETTER
on subjects such as the Europe/China direct investment, European financial
regulatory developments, and European debt restructuring.
We welcome our Europe Committee members who wish to step forward as guest
editors to organize further issues such as this one and others posted on the
Europe Committee website.
Francesca Giannoni-Crystal (fgiannoni-crystal@cgcfirm.com),
Michael L. Balistreri (michael.balistreri@rhi.com), Editors
CROSS-BORDER SIGNATURE VERIFICATION – CIVIL LAW NOTARIES & NOTARIES PUBLIC
– HAGUE APOSTILLE CONVENTION – VIENNA CONVENTION ON CONSULAR RELATIONS
Contents
Policy Proposal 3
Do the Right Thing (for your duty of
competency): Some Ethical and
Practical Thoughts on “Notarization”
in International Transactions
6
Signature Verification and
Attestation—Context and
Frameworks for Harmonization of
Law
8
Comments of the U.S. Department of
State on the Proposal by the U.S.
Lawyers Abroad Committee to
Amend the 2010 Revised Uniform
Law on Notarial Acts, October 26,
2012
13
French Notaries 15
The Notary Public in Italy 17
Interaction of Civil Law and Common
Law Notaries: The Mexican
Experience
21
Notaries Public in England and Wales 25
Recent German Case Law on the
Usage of Swiss Notary Work Product
in Germany
30
US Lawyers Abroad Committee
Proposed Reform of Uniform Law On
Notarial Acts
32
U.S. Lawyers Abroad Committee
Memorandum to Joint Editorial Board
Interim Survey Findings
35
Notaries in Germany 19
Notaries Public in Scotland 28
A Call for a 21st Century Review
Aimed at Legitimizing Documents in
a Global Economy
4
EUROPE UPDATE

Issue 4 Page 2
EUROPE UPDATE
About the Europe Committee
The Europe Committee seeks to engage lawyers conducting practices that touch Europe, including the
various European countries, the European Union, and the institutions of the Council of Europe. It
nurtures a community of lawyers sophisticated in cross-border matters, comparative law, and the
continuously emerging transnational law of Europe, public and private. The Europe Committee’s
activities include the sponsorship of programs at the Section of International Law’s seasonal
meetings, hot topics teleconferences and newsletter presentations by experts on emerging
developments of European law, exploration of legal policy and law reform topics, contribution to the
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Law standalone and other programming.
The Europe Committee’s membership is its most important asset. We encourage all Committee
members to be involved in Committee activities and to communicate freely suggestions and ideas.
Upcoming Events Director Interview
Lev Kubiak, Director
National Intellectual Property Rights
Coordination Center (IPR Center)
Wednesday, April 24 Breakfast Program
8:00 - 8:50
International Protection of Trademarks: Not
Just for IP Lawyers
Wednesday, April 24
11:00 - 12:30
Europe Committee dinner
Wednesday evening following the reception
Europe Committee Business Meeting
Thursday April 25, 9-10, Glacier Room
Year of the Snake: China’s New Copyright
& Patent Reforms
Thursday, April 25, 4:30-6:00
European law on cross-border lending, as
navigated in its emerging market
jurisdictions
Friday, April 26, 2:30 - 4:00
VOLUNTEER to be a REPORTER for the
Europe Committee HOT TOPICS Newsletter
special edition covering the spring meeting!
Contact guest editor Nathan Rice or the
Committee Co-Chairs
Washington DC Spring 2013
Meeting April 23 – 27
Of interest to Europe Committee
members
Among the programs to be presented
at the American Bar Association’s
Section of International Law 2013
Spring Meeting in Washington, DC are
the following programs of which the
Europe Committee is the primary
organizing committee:
Harmonization of EU laws: the Rocky
Road of Integration on Finance, Privacy
and Culture
Tuesday, April 23, 11:00 - 12:15
What's in a name? That which we call a
Notary, is it the same?
Tuesday, April 23, 2:45 - 4:00
Europe Committee “Fun” Event
Tuesday evening, April 23, following the
reception
Committee Leadership
2012-2013
Co-Chairs
Patrick Del Duca
Florian S. Jörg
Immediate Past Chair
Jason Lindbloom
Vice Chairs
Mattia Colonnelli de Gasperis
Alexandra Darraby
Pat English
Francesca Giannoni-Crystal
Tanya Jaeger-deForas
Werner R. Kranenburg
Maura McLaughlin
JLN Murthy
Giuseppe Rosa
Steering Committee
Members
Charles Marvin
Nancy Matos
Elizabeth O’Connor
Craig Redinger
Anders Reitz
Marie Scott
Larry White
Wilhelm Ziegler
Senior Advisors
Violeta Balan
Malika Levarlet
DISCLAIMER The materials
and information in this newsletter
do not constitute legal advice.
EUROPE UPDATE is a publication
that is made available solely for
informational purposes and
should not be considered legal
advice. The opinions and
comments in EUROPE UPDATE
are responsibility solely of each
author/contributor and do not
necessarily reflect the view of the
ABA, its Section of International
Law, or the Europe Committee.

Issue 4 Page 3
DISCLAIMER: The materials and information in this
newsletter do not constitute legal advice. EUROPE
UPDATE is a publication made available solely for
informational purposes and should not be considered
legal advice. The opinions and comments in EUROPE
UPDATE are those of its contributors and do not
necessarily reflect any opinion of the ABA, their
respective firms or the editors.
respect of territorial sovereignty that
prevented the initiative of the US Lawyers
Practicing Abroad Committee, a fellow
Section committee, from proceeding.
With the benefit of the thoughtful
contributions here presented, and as
overviewed in the contribution of Patrick
Del Duca in this newsletter, there are
current opportunities for constructive law
reform in respect of the Hague Apostille
Convention, the Vienna Convention on
Consular Relations, and most broadly the
emerging international frameworks for
treatment of electronic signatures, as well
as model legislation directed specifically at
American states.
It is the current intention of our working
group to prepare and to advance a
proposed Report and Recommendation
to the Council of our Section of
International Law. The initial draft of the
proposed Report would be based on
Patrick Del Duca’s contribution, with the
various further contributions in this
newsletter serving as supporting
documentation. An initial formulation of
the recommendation follows:
RESOLVED, that the American Bar
Association supports modernization
and simplification of the requirements
and procedures related to verification
of signatures in cross-border contexts.
As we gather in Washington, DC at our
Section’s 2013 spring meeting, we will
find the occasion to confer, debate and
refine this initial recommendation. On
behalf of the Europe Committee as its
policy officer, I take this opportunity to
thank each of the contributors to the
working group and this newsletter and to
invite the readers of this newsletter to
engage with our working group to carry
forward the topic.
Contributors this edition:Contributors this edition:Contributors this edition:
Ann-Kristin Becker
Law student
Hamburg
Prof. Nathan M. Crystal
Charleston School of Law
Charleston, SC
Patrick Del Duca
Zuber Lawler & Del Duca LLP
Los Angeles
Anna Engelhard-Caldwell
Rechtsanwältin
Hamburg
Michael P. Clancy O.B.E.
The Law Society of Scotland
Edinburgh
Francesca Giannoni-Crystal
Crystal & Giannoni-Crystal, LLC
New York City
Islam Khan
Barrister, Inner Temple
London
Werner R. Kranenburg
Kranenburg
London
Dr Johannes Landbrecht LLB (London)
Lalive
Geneva
Stéphane de Navacelle
Navacelle Avocats
Paris
María Angélica Nieves S.
Barrera, Siqueiros y Torres Landa
Mexico City
Alessandro Steinhaus
Jenny & Partners
Milan
Linda Strite Murnane
Franklin County Municipal Court
Columbus, Ohio
Juan Francisco Torres Landa R.
Barrera, Siqueiros y Torres Landa
Mexico City
US Department of State
US Lawyers Abroad Committee
EUROPE UPDATE
Since agreeing at the beginning of the
current bar year to be the Europe
Committee Vice-Chair serving as the
Europe Committee’s policy officer, I have
been gratified by the interest and
cooperation of many Europe Committee
members, the Europe Committee Co-
Chairs Patrick Del Duca and Florian
Jörg, and also of the policy officers of our
Section Ron Bettauer and Yee Wah
Chin, as I have attempted to carry
forward the mandate entrusted to me.
Having raised an initiative of the US
Lawyers Practicing Abroad Committee of
a few years ago that pertained to
facilitation of the procedures for
notarization of signatures across borders,
but for US legal purposes, I promptly
learned of a Europe Committee
sponsored panel presentation at the
upcoming spring meeting of our Section
in Washington, DC. That panel, chaired
by Europe Committee vice chair
Francesca Giannoni-Crystal and Juan
Francisco Torres Landa, a former Co-
Chair of the Mexico Committee, will
focus on differences in the conceptions of
what a notary does in civil and common
law systems. The working group in
support of that panel quickly agreed to
function as the core of the Europe
Committee’s policy working group. This
new working group then considered the
issue of notarization of signatures in a
wider context than that of the mere
modification of model legislation on
notaries public directed to the American
states. Specifically, its input brought into
focus the concerns of civil law
jurisdictions in which notaries serve
functions much broader than those of
notaries public. In so doing, it also
brought to the fore the concerns of
Signature Attestation Policy Proposal by Werner R. Kranenburg

EUROPE UPDATE
Issue 4 Page 4
A Call for a 21st Century Review Aimed at
Legitimizing Documents in a Global Economy
by Linda Strite Murnane
In February 2013, the United States Supreme Court
heard arguments discussing the impact of the U.S.
Constitution’s Fourth
Amendment which prohibits
unreasonable search and
seizures, in the context of the
taking of DNA evidence
where there is not a reasonable
suspicion of guilt and no
warrant has been issued.(1)
This case has little to do with
notarizing documents or
authenticating signatures, but it does bring into sharp
focus the dilemma of determining how best to address
scientific developments which were not necessarily part
of the legal landscape at the time existing laws first
came into existence.
It is in that context that the ABA might benefit from
looking at how the world has changed since the
adoption of the Vienna Convention on Consular
Relations of April 24, 1963, and the adoption of the
Hague Convention of October 5, 1961, Abolishing the
Requirement of Legalisation for Foreign Public
Documents. If you consider that
nearly half a century later, we are still
functioning under the basic
structures that existed before the
information super highway changed
all of our lives, and our legal practices
forever, it becomes clear that the
time is ripe for a review of the
processes put in place to safeguard
business, corporate, real property and
personal transactions through uses of consular and
notarial processes.
The U.S. Lawyers Practicing Abroad Committee’s
interest in this topic began in a response to a very basic
need. As part of the increasingly global nature of law
practice, law students have begun to participate
globally in internships and externships in law firms,
international organizations and other opportunities
which are intended to make these students more
responsive to the increasingly global demand for legal
services which are not
restricted to one’s
own national borders.
When those law
students later apply
for admission to a
U.S. State bar, they
are required to obtain
an affidavit from their
former international
“employer” detailing
what services they performed and whether they met at
least minimum standards expected for a law student.
Many of these interns are supervised in the
international setting by attorneys or legal professionals
whose law licenses, if they have one, or whose law
credentials are not delivered from the United States.
Those bar applicants who seek to take the New York
State Bar exam, for example, are required to have that
statement “notarized” under the U.S. definition of
what a “notary” does.
DISCLAIMER: The materials and information in this newsletter do not
constitute legal advice. EUROPE UPDATE is a publication made available solely
for informational purposes and should not be considered legal advice. The
opinions and comments in EUROPE UPDATE are those of its contributors and do
not necessarily reflect any opinion of the ABA, their respective firms or the
editors.
the ABA might benefit from looking at how the
world has changed since the adoption of the
Vienna Convention on Consular Relations of
April 24, 1963, and the adoption of the Hague
Convention of October 5, 1961, Abolishing the
Requirement of Legalisation for Foreign Public
Documents.
If you consider that nearly half a century later, we are still
functioning under the basic structures that existed before the
information super highway changed all of our lives, and our
legal practices forever, it becomes clear that the time is ripe
for a review of the processes put in place to safeguard
business, corporate, real property and personal transactions
through uses of consular and notarial processes.

EUROPE UPDATE
Issue 4 Page 5
It seems perhaps not a difficult challenge, but if you
consider that at an institution such as an international
tribunal, there are as many as 80 to 90 interns, rotating
approximately every three months, the “notary”
requirement is fairly significant. When you add to this
the consideration that obtaining an
authenticated signature from a local
“notissaren” could cost between 50
Euro and 300 Euro, a price which is
not borne by the institution but by the
supervising attorney in their personal
capacity, the question arises whether
this is potentially going to deter U.S.
law students, or international entities
from considering these students for
these important educational
opportunities.
The concern was amplified when some international
entities advised that they were unable to obtain
appointments with U.S. Consulate notaries, whether
due to security restrictions or due to workload
limitations. This highlighted the “access to justice”
issue which is linked to the existing international
conventions on notarial acts.
From these humble roots, the U.S. Lawyers Practicing
Abroad Committee asked its members to detail any
anecdotal evidence they might have of access to justice
relating to the completion of business documents and
records which might support a broader review of the
existing conventions. The response was remarkable
and provided extensive and detailed accounts of
barriers to business and trade, and difficulties in
serving clients whose interests
are no longer confined within
U.S. boundaries.
When you consider that the
existing conventions were
adopted before the use of
electronic and digital signatures,
it seems that a comprehensive
review of the tools considered
necessary to safeguard the business, real property, and
commercial transactions is more than overdue. The
U.S. Lawyers Practicing Abroad Committee
commends the work of the ABA Section of
International Law’s
Europe Committee
and looks forward
to productive
dialogue on issues
that will help to
tackle this access to
justice issue in the
form of a policy
resolution that
addresses this issue
for the 21st century.
(1) Maryland v. Alonzo Jay King, Jr., 567 U.S. ___ (2012),
oral arguments 27 Feb 2013.
When you consider that the existing conventions were adopted
before the use of electronic and digital signatures, it seems that a
comprehensive review of the tools considered necessary to
safeguard the business, real property, and commercial
transactions is more than overdue.
From these humble roots, the U.S. Lawyers
Practicing Abroad Committee asked its
members to detail any anecdotal evidence
they might have of access to justice
relating to the completion of business
documents and records which might
support a broader review of the existing
conventions.
The response was remarkable and provided
extensive and detailed accounts of barriers to
business and trade, and difficulties in serving
clients whose interests are no longer confined
within U.S. boundaries.

EUROPE UPDATE
Issue 4 Page 6
Excerpt from
Do the Right Thing (for your duty of
competency): Some Ethical and Practical
Thoughts on “Notarization” in International
Transactions, 12 (2) GLOBAL JURIST 2012, Topics,
ISSN (Online) 1934-2640, DOI: 10.1515/1934-
2640.1412, available at http://
www.degruyter.com/view/j/gj.2012.12.issue-
2/1934-2640.1412/1934-2640.1412.xml
reprinted with permission (citations omitted)
by Nathan M. Crystal
and Francesca Giannoni-Crystal
It is beyond doubt, that, when civil law countries use
the word “notary” (or notario, notaio, notaire, Notar, etc.),
the reference is to something different from a US
“notary.” The word “notary” comes from Latin
“notarius,” which means “rapidly written”; in the
Roman Republic a transcriber who used a fast method
of writing (“notae”) was called notarius. During the
Roman Empire, notaries came to
be connected with high officials,
and they acquired therefore a
enlarged status as a prominent
profession. Notaries maintained a
certain importance in Continental
Europe in the Middle Ages, and
during the Renaissance they were central figures of the
law. This is still the case in civil law countries, but not
so in common law countries, particularly the US.
In the US, notaries are not professionals. A notary
public or public notary (or simply a “notary”) is a
public official delegated by the state some
authentication powers. In common law countries,
generally notaries administer oaths and affirmations,
receive statutory declarations, witness and authenticate
documents, take acknowledgments of deeds, and do
other activities depending on the jurisdiction. In the
US notaries are appointed by government authorities
for a limited term (called “commission”). Unlike other
common countries where the number of notaries is
insignificant (e.g., 740 notaries in England), in the US
the number is enormous (4.5 million). Indeed, in the
US notaries are widely used for routine transactions.
While in England and in other common law countries
notaries are generally lawyers and must go through a
special training, in the US notaries are predominantly
lay people, who, depending on the jurisdiction, may or
may not be required to attend a brief training seminar.
In the US notaries are prohibited to practice law;
lawyers, however, are allowed to be notaries.
In civil law countries notaries (“civil law” notaries or
“Latin notaries” or simply “notaries”) are public
officials like the US notaries, but they are also law-
trained, highly respected legal professionals. Notaries
are generally distinct from lawyers -- in some
countries, like Italy, lawyers are even expressly
prohibited from being notaries; there are exceptions,
however, notably Germany. Civil law notaries have
generally the same or greater prestige than attorneys in
the US. In addition, however, they enjoy a reputation
of neutrality --
unknown to
attorneys -- that
can be compared
to that of an
ADR neutral.
The requirements to become a civil law notary are
quite extensive. Generally notaries attend the same law
school as future lawyers and judges, but in some
countries (e.g., Argentina), notaries attend a specific
law school. After law school, notaries typically go
through a period of training (e.g., 18 months in Italy, 2
years in France) with a notary official and take a highly
selective state examination; only those ranking at the
top become notaries because generally the number of
notaries for a territory (“district”) is established by law.
As a result, the number of notaries is quite low; for
editors.
In the US, notaries are not professionals. . . .
Civil law notaries participate substantively in
transactions, while the role of their US
counterparts is formal.

EUROPE UPDATE
Issue 4 Page 7
example, less than 5,000 notaries in Italy, 3,000 in
Spain, 9,000 in France, 8,000 in Germany.
Civil law notaries participate substantively in
transactions, while the role of their US counterparts is
formal. By law, civil law notaries generally must be
present and authenticate property transfers, formation
and incorporation of companies, bank loan contracts,
donations of assets, drafting of wills, and many
commercial transactions. In some countries the role of
notaries might be greater. Civil law notaries are public
officials. Their role as public officials, however, is
wider than that of US notaries because of their ability
to draft public instruments (also called “authentic
instruments”). US notaries cannot issue public
instruments, except in Louisiana and Puerto Rico,
which have a civil law tradition, and in Florida and
Alabama, which passed special statutes to this effect.
By contrast, with some exceptions, the public
instrument is the typical product of civil law notaries. A
public instrument is a document that is drafted entirely
by the notary. A public instrument has high probative
value of the authorship of the document, of the parties’
declarations, and of the other facts that
the notary certifies as happening in front
of him. In addition, a public instrument
has the “privileged enforceability . . . of a
definitive judgment,” meaning that in
case of a breach of an obligation by a
party, the other party may start an
enforcement procedure without waiting for a court
decision on the breach. Moreover, in a few countries,
public instruments are the only documents that
can be entered into public registries. Public
instruments are stored by the notary and generally
are available to whomever requests them (hence
the name of “public”).
Besides issuing public instruments, civil law
notaries authenticate private documents
(“authenticated instruments”). An authenticated
instrument is a written private document that is signed
by its authors in front of a public official (in this case a
notary) who certifies their identities after obtaining
proper documentation. An authenticated instrument,
like a public instrument, has a high probative value but
only as to the identity of the signors. With some
exceptions a private authenticated instrument can also
be entered in the public registries. While a civil law
authenticated instrument is essentially the same as a
notarized document in the US, the participation of
civil law notaries makes the document more
persuasive.
Civil law notaries as public officials are considered
custodians of the “public trust” (or “legal certainty”
or “authenticity”). As a result, the verification of
parties’ identity and of powers of attorney is generally
lengthier than in the US. In addition, because civil
law notaries are also legal professionals, they have the
mission to give legal advice. Notaries’ legal advice
must be impartial. Civil law notaries, therefore, do not
simply authenticate the signatures on a private
instrument, they read the text, explain the legal
consequences, and give impartial advice.
Civil law notaries as public officials are considered
custodians of the “public trust” (or “legal certainty” or
“authenticity”). . . . Civil law notaries, therefore, do not
simply authenticate the signatures on a private
instrument, they read the text, explain the legal
consequences, and give impartial advice.
US notaries cannot issue public instruments,
except in Louisiana and Puerto Rico, which have
a civil law tradition, and in Florida and Alabama,
which passed special statutes to this effect.
A public instrument has high probative value of
the authorship of the document, of the parties’
declarations, and of the other facts that the
notary certifies as happening in front of him.

EUROPE UPDATE
Issue 4 Page 8
Signature Verification and Attestation—
Context and Frameworks
for Harmonization of Law
by Patrick Del Duca
As economic activities migrate into the cloud and
across borders, verification of the identity of a signer,
together with attestation of that verification in a form
acceptable in jurisdictions outside that of the country
of attestation, holds ever-increasing importance.
Continued economic globalization and the evolution of
cloud-based technology merit ongoing re-examination
of the legal frameworks supporting verification and
attestation.
American Bar Association policy
The American Bar Association’s House of Delegates
recognized the value of such re-examination in 2011,
when it endorsed the Uniform Law Commission’s
Revised Uniform Law on Notarial Acts, which was
promulgated for consideration by state legislatures in
2010. Likewise in 2011, the American Bar
Association’s House of Delegates adopted a policy for
the promotion of efforts to improve the legal
frameworks globally for the conduct of secured
lending, a subject matter with respect to
which the formalities in many jurisdictions
dealing with the identity of a signer can
obstruct the efficient conduct of secured
lending. The American Bar Association has
the opportunity to adopt further policy
statements to support update of the legal
frameworks for the verification and
attestation of signatures across borders.
Common law notary public, civil law notary, and
treaty regimes
National legal systems have long contemplated
verification of the identity of a signer, and attestation
of that verification for subsequent use, through
intervention of an individual exercising governmental
authority. Within the United States, this is the
predominant role of a notary public. Within civil law
systems, such attestation is an important aspect of the
role of a civil law notary. In each instance the
verification of identity is accomplished predominantly
by the attesting authority’s examination of identity
documents presented at the time of signature.
Legislation defines the figure of the verifying and
attesting authority, and its obligations and powers.
Treaties – notably the Hague Convention of October
5, 1961 Abolishing the Requirement of Legalisation
for Foreign Public Documents and the Vienna
Convention on Consular Relations of April 24, 1963 –
supplement private international law norms dealing
with the significance of attestation of a signature’s
verification outside the territory of the attesting
authority.
In civil law countries, notaries have additional
responsibilities, typically to determine that the parties
understand the significance of their legal act and that it
is drafted in technically correct fashion. Generally the
qualifications of a civil law notary, the hurdles to
become a civil law notary, and the costs imposed on
those who use a civil law notary’s services (often
excise taxes as well as charges for professional
services) are much greater than those associated with
the limited services afforded by a notary public.
Because of the public faith accorded to an act
prepared before a civil law notary, their work deters
and mitigates potential litigation more than when a
editors.
Treaties – notably the Hague Convention of October 5,
1961 Abolishing the Requirement of Legalisation for
Foreign Public Documents and the Vienna Convention
on Consular Relations of April 24, 1963 – supplement
private international law norms dealing with the
significance of attestation of a signature’s verification
outside the territory of the attesting authority.

EUROPE UPDATE
Issue 4 Page 9
notary public, who only verifies a signer’s identity,
intervenes. In many instances, a civil law notary’s
involvement and the purposes served by that
involvement extend well beyond the simple verification
of the identity of a signer and the attestation of the fact
of such verification.(1)
By way of example, public recordation of documents
conveying interests in real property in the United States
generally requires notarized signatures. The notary
public’s role with respect to such documents is simply
to verify the identity of the signer and to attest in
writing that person’s signature. Notarization is
required to record a document, but does not
necessarily determine ownership, which may be
determined by unrecorded documents or other
circumstances. In contrast, in a civil law jurisdiction,
the signature of conveyance documentation prepared
by, and in the presence of, a civil law notary is generally
necessary to transfer ownership of interests in real
property. In addition to assuring that a transfer of
ownership occurs, the civil law notary must determine
that the documentation is legally correct, assure that
the parties understand the transaction that the
documentation purports to effect, verify the identities
of the signers of any documents, and attest to such
verification. Obviously, civil law notaries receive
substantially greater compensation than
notary publics because of their more
extensive responsibilities. In essence, the
role of the civil law notary, while
frontloading costs of effecting a
transaction, is intended, by assuring
greater legal certainty, to reduce the
ultimate costs associated with litigation
subsequent to a purported transaction.(2)
National legal systems vary in the
determination of the purposes for which
signatures verified through an exercise of
public authority are required. In the
model of the United States, such signatures are
typically required in connection with conveyances of
interests in real property to be recorded in the public
records of property ownership and also in connection
with oaths sworn for various purposes. Various civil
law jurisdictions require verified signatures for
additional kinds of acts, including for example the
establishment of charters of corporate entities,
donations, and oftentimes the granting of security
interests, even in respect of prospective collateral that
is not real property.(3)
Electronic signatures
The increasingly transnational marketplace does not
confine itself to the established mechanisms of
verification of the validity of signatures, and the
attestation of such verification, through public
authorities. Secure electronic signatures are
increasingly employed for the conclusion of contracts
of many types. Private sector, for-profit businesses
such as Symantec, McAfee, Rightsignature, Echosign
(Adobe), Docusign, Silanis Technology, Sertifi and
others, provide the framework for assurance of the
validity of the electronic signature, and, increasingly,
legislation contemplates recognition for legal purposes
of the validity of such electronic signatures.
UNCITRAL’s 2001 Model Law on Electronic
Signatures has found resonance in a still-limited, but
growing number of countries.
In the United States, the Uniform Electronic
Transaction Act (“UETA”), promulgated by the
The increasingly transnational marketplace does not
confine itself to the established mechanisms of verification
of the validity of signatures, and the attestation of such
verification, through public authorities. . . . Private sector,
for-profit businesses such as Symantec, McAfee,
Rightsignature, Echosign (Adobe), Docusign, Silanis
Technology, Sertifi and others, provide the framework for
assurance of the validity of the electronic signature, and,
increasingly, legislation contemplates recognition for legal
purposes of the validity of such electronic signatures.

EUROPE UPDATE
Issue 4 Page 10
Uniform Law Commissioners in 1999, has been the
basis of legislation in each of the states, except for
Illinois, New York and Washington, which have
legislated independently. UETA applies only where
the parties agree to conduct a transaction by electronic
means, and provides for the legal equivalence of
electronic records and signatures to their paper
counterparts. Specifically as to the activity of notaries
public, UETA removes the stamp/seal requirements,
but does not eliminate the other requirements of
notarization, such as presence of the notary in the
room with the person signing the document or
verification of the person’s identity. Further, the
federal Electronic Signatures in Global and National
Commerce Act (“ESIGN”), adopted in 2000, provides
that “a signature, contract, or other record … may not
be denied legal effect, validity, or enforceability solely
because it is in electronic form” and a contract may not
be denied legal effect, validity, or enforceability “solely
because an electronic signature or electronic record
was used in its formation.” As under UETA, ESIGN
allows electronic signatures of notaries to be given the
same effect as manual signatures provided that they
conform with other relevant norms. The European
Union legislation analogous to ESIGN is Directive
1999/93/EC of the European Parliament and of the
Council of December 13, 1999 on a Community
framework for electronic signatures.
International channels of signature recognition
Movements of persons, goods and services, and capital
across borders have long presented the challenge of
how to provide and recognize attestations of the
validity of signatures across borders. In addition to the
“full faith and credit” model of the United States, and
the European Union model of harmonization through
directives and regulations, several channels exist for
recognition by one jurisdiction of an attestation of the
verification of the identity of a signer in connection
with a signature abroad.
Treaties
The Hague Convention of October 5, 1961
Abolishing the Requirement of Legalisation for
Foreign Public Documents (the “Hague Apostille
Convention”), widely ratified, contemplates
recognition of the attestation of signatures. Its
mechanism for such recognition involves an apostille.
The apostille is a certification by a national
governmental authority, recognized pursuant to the
treaty, of the validity of the attestation of a signature
by a relevant authority of that country. Through the
Hague Convention, an attestation of a signature by a
California notary public, for example, can be
recognized in France or Mexico, both countries along
with the United States that have ratified the Hague
Convention. The attestation is presented to the
relevant French or Mexican authorities together with
an apostille, in the form specified by the treaty,
pursuant to which one of the American authorities
recognized by the treaty, namely the California
Secretary of State, affirms that the California notary
public is indeed in good standing and pursuant to
relevant law, able to verify the identity of
the signer and attest that such person has
indeed provided the relevant signature in
the notary public’s presence.
Foreigners, by virtue of unfamiliarity with
domestic law and practices, as well as
perhaps barriers of language and reluctance
of their home jurisdiction to accept acts of
other legal systems, may not readily make use of the
mechanisms of a legal system for attestation of
signatures in instances when such an attestation is
required for purposes of their home jurisdiction.
Recognizing this reality, the Vienna Convention on
Consular Relations of April 24, 1963, widely ratified,
In addition to the “full faith and credit” model of the
United States, and the European Union model of
harmonization through directives and regulations,
several channels exist for recognition by one jurisdiction
of an attestation of the verification of the identity of a
signer in connection with a signature abroad.

EUROPE UPDATE
Issue 4 Page 11
contemplates within its definition of permissible
“consular intercourse” that consular officials may
within consular premises attest the validity of
signatures for purposes of their country’s legal system.
In general, within the legal systems of the states that
have ratified this treaty, the treaty trumps provisions of
law that would accord a monopoly on such attestation
to domestic legal actors or that would define the
activity of such attestation by non-domestic legal actors
as an infringement on territorial sovereignty.
Private international law mechanisms
Non-treaty mechanisms complement the Hague
Apostille Convention and the Vienna Consular
Relations Convention in respect of recognition of
extraterritorial attestations of signatures.
So-called “legalization” of a signature may be
accomplished outside the Hague Apostille Convention
by certification of an attestation by a foreign ministry
official of the country in which the signature is made
and attested, subsequently further attested by a
consular official in that country of the country in which
the attestation is to be used. Thus, for example,
Canada is one prominent country that has not ratified
the Hague Apostille Convention, and accordingly as a
precondition to the use within Mexico of an attestation
of the validity of a signature accomplished in Canada,
Mexico requires “legalization” of signatures granted in
Canada, first through attestation by a Canadian official
within its foreign ministry and then by a Mexican
consular official in Canada.
There are further paths to the recognition of
attestations of signatures across jurisdictions. In the
United States, the full faith and credit clause of its
federal constitution is the basis for recognition of an
attestation of a signature by a notary public of one
jurisdiction in any of the other jurisdictions in the
United States. Further, the national legal systems of
civil law jurisdictions with some frequency determine
that an act by a notary of another jurisdiction is
appropriate for use within the national legal system.
Subsumed within acts accepted of broad reach, e.g.
the recognition of acts of conveyance of corporate
ownership interests, may be attestation of a signature.
Thus for example, a variety of acts of notaries of
Switzerland’s German-language cantons are routinely
recognized in Germany, although such
recognition has been litigated.
In the United States, Louisiana by virtue of its
roots in the French legal system has “civil law
notaries” with some power to draft
documents, Puerto Rico with roots in the
Spanish Civil law system has civil law notaries who
must be trained as lawyers, and Alabama and Florida
have adopted statutes establishing the figure of a “civil
law notary”, intended to be accorded attributes
sufficient to enable such a civil law notary’s acts to be
recognized as equivalent to those of notaries in civil
law jurisdictions abroad, even without reliance on the
Hague Apostille Convention. They follow the Model
Civil Law Notary Act of the National Association of
Civil Law Notaries, founded in 1998. Civil law
jurisdictions outside the United States may be more
likely to recognize the acts, including attestation of the
verification of the identity of a signer, of “civil law
notaries” from these jurisdictions of the United States,
even outside the Hague Apostille Convention, than
they would acts of the, to them unfamiliar and limited,
figure of the notary public.
Law reform opportunities
In regard to whose attestations of signatures might be
accorded significance, arguments that rigidities of
territorial sovereignty and professional monopoly well-
served the interests of legal certainty have clear
historical justification. In a world of restricted
communications, isolated legal systems, and limited
literacy even among merchants, restriction of
Further, the national legal systems of civil law
jurisdictions with some frequency determine that an
act by a notary of another jurisdiction is appropriate
for use within the national legal system.

EUROPE UPDATE
Issue 4 Page 12
attestation of signatures to a limited caste of individuals
exercising public authority, and further limiting
extraterritorial use of such attestations to controls
exercised through diplomatic frameworks based on
concepts of territorial sovereignty, may have made
eminent sense. However, in the current globalized
economy, such limitations are increasingly subject to
debate as burdens on economic activity and perhaps as
restraints on trade. The question is whether the
restrictions serve a purpose that outweighs the
associated burden. Although the model of territorial
monopoly for a civil law notary is argued to be critical
to assuring the full panoply of notarial services and the
associated benefits, this argument is not readily
sustainable in respect of the narrow function of the
verification of signatures and the attestation of such
verification. Indeed, Mexico is an example of a civil
law country that features the civil law notary in
the classic sense, but also the figure of corredores
publicos, whose role is more narrowly limited,
principally to the verification of signatures and
the attestation of that verification. Further,
France since 2011 has contemplated the acte
d’avocat, involving mere verification and attestation of
signatures by a lawyer, formerly exclusive province of a
notaire.
In the age of the cloud, limitation of the attestation of
signatures to those exercising public authority, and
restriction of the right to attest signatures by territory,
each appear as potentially outmoded concepts. A
contemporary approach would eliminate the notion of
territoriality, simultaneously allowing co-existence and
equality of public and private attestations of the
verification of a signature.
A number of legal instruments, including model
legislation and treaties, would be the target of reform
efforts to achieve such an approach.
United States
Within the United States, the Revised Uniform Law on
Notarial Acts of the Uniform Law Commission and
the Model Civil Law Notary Act of the National
Association of Civil Law Notaries would be focuses.
The Revised Uniform Law on Notarial Acts might be
explored as one instrument into which to incorporate
a 2009 proposal of the US Lawyers Abroad
Committee of the American Bar Association’s Section
of International Law, namely the concept that a lawyer
in good standing be authorized to verify and to attest
the verification of a signature for purposes of the
jurisdiction in which the lawyer is admitted to practice,
such faculty to be a complement to the action of
notaries. Although not incorporated in the 2010 text
of the Revised Uniform Law on Notarial Acts, the
concept of mutual recognition of signature attestation
services, without regard to the seat from which they
are rendered, would echo results achieved in the areas
of corporate law and the Uniform Commercial Code
through harmonization of choice of law rules and
mutual recognition of entities.
The Model Civil Law Notary Act has thus far found
resonance in only two states. Its further refinement
and the consequent further adoption of civil law
notary statutes would be designed to increase, outside
the framework of the Hague Apostille Convention,
the recognition outside of the United States of
attestations of signatures in the United States.
Treaty reform
A path more broadly to set aside parochial and
outdated conceptions of sovereignty in multiple
countries, would mean to address the issue of
recognition of signatures and their attestations
through the United Nations International Law
Commission, with a view to supplementation or
amendment of the Vienna Convention on Consular
Relations. The focus of interest would be to
incorporate concepts such as mutual recognition of
the work of anyone authorized under domestic law to
attest signatures, and broadening the concepts of
Within the US, the Revised Uniform Law on Notarial
Acts of the Uniform Law Commission and the Model
Civil Law Notary Act of the National Association of
Civil Law Notaries would be focuses of interest.

EUROPE UPDATE
Issue 4 Page 13
consular intercourse to deem that such persons may
attest signatures for purposes of their own legal
systems without regard to territorial location.
Supranational and regional organizations
Supranational and regional organizations will benefit
from addressing the issue of frameworks for signature
verification and attestation. The European Union, the
Organisation pour l’Harmonisation en Afrique du Droit des
Affaires (OHADA), and the Organization of American
States are examples of such organizations that offer
frameworks for relevant law reform.
Conclusion
The traditional concepts of notarial verification and
attestation of signatures under domestic and
international law merit re-examination for purposes of
coordination with emerging technology and
transnational commercial practices. Their
supplementation with complementary mechanisms and
their direct redefinition under domestic law,
international treaties, customs and practices among
merchants and relevant non-governmental
organizations, as well as the law of supranational and
regional organizations such as the European Union,
offer the promise of lightening outmoded and
unnecessary impediments to economic activity
dependent on cost-effective and timely verification of
signatures.
(1) See Patrick Del Duca, To Create a Lien Priority: UCC
Notice-Filing vs. Civil Law Notary Public Writing, 44 UNIFORM
COMMERCIAL CODE LAW JOURNAL 33 (2011).
(2) Id.
(3) See Patrick Del Duca, CHOOSING THE LANGUAGE OF
TRANSNATIONAL DEALS: PRACTICALITIES, POLICY AND LAW
REFORM (American Bar Association, 2010).
(4) OFFICIAL JOURNAL L13/12 (Jan. 19, 2000), as amended by
Regulation (EC) no. 1137/2008 of the European Parliament and
of the Council of October 22, 2008, L 311/1 (Nov. 21, 2008).
Comments of the U.S. Department of State
on the Proposal by
the U.S. Lawyers Abroad Committee
to Amend
the 2010 Revised Uniform Law on Notarial Acts
October 26, 2012
The U.S. Lawyers Abroad Committee has proposed
an amendment to Section 14 (“Foreign Notarial Act”)
of the 2010 Revised Uniform Law on Notarial Acts.
The proposal purports to authorize the performance
of notarial acts in a foreign jurisdiction by an
individual who (1) is an attorney licensed to practice
law, in good standing and in active status, in a state,
district, or territory of the United States, and (2) is
resident in the foreign jurisdiction where the notarial
act is performed. Under this proposal, such a notarial
act would have the same effect under the law of any
state of the United States as if the act had been
performed by a notarial officer of that state.
The proposal is motivated by the perception that
persons residing in foreign jurisdictions who require a
notarial act that will have legal effect in the United
States encounter difficulty in obtaining notarial
services.
The paper from the U.S. Lawyers Abroad Committee
acknowledges two types of concerns that have been
raised in response to the proposal. The first has to do
with whether the U.S.-admitted attorney performing a
notarial act in a foreign jurisdiction should be licensed
as a notary in a U.S. state. The second has to do with
the sovereignty of foreign States. This paper
addresses that latter concern.
The Committee suggests that concerns about
infringement of foreign State sovereignty are
satisfactorily addressed because (1) the U.S.-admitted
attorney is lawfully resident and engaged in legal work
editors.
The traditional concepts of notarial verification
and attestation of signatures under domestic and
international law merit re-examination for
coordination with emerging technology and
transnational commercial practices.

EUROPE UPDATE
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in the foreign jurisdiction, and (2) the notarial act is to
have legal effect only in the United States, and not in
the foreign jurisdiction. On these bases, it is asserted
that “sovereignty concerns are substantially alleviated.”
This, however, overlooks a fundamental reality:
foreign States generally regulate who may perform
notarial acts in their territory. One cannot assume that
relevant laws or regulations would exempt individuals
on the basis of their nationality, or because the notarial
act is to have legal effect in a third country.
The American Society of Notaries has published
guidance to U.S. notaries on “Understanding Your
Jurisdictional Limits” (see www.asnnotary.org/?
form=jurisdictionissues). That guidance includes the
following with regard to notarial acts performed in
other U.S. states:
One misperception we address regularly is the thought
that a notary commissioned in state “A” may notarize
while geographically located in state “B,” so long as the
document is for use in state “A.” The problem here is
that the notary does not hold a notarial commission
from state “B,” therefore he/she is not authorized to
notarize there regardless where the document is to be
used.
It doesn’t matter if the document(s) will be recorded in
commissioning state “A,” or if the notary is
performing services (signing agents, for example) on
behalf of a company that is domiciled in state “B.”
The notary may notarize only when he/she is within
the geographic boundaries of commissioning state “A,”
and could only notarize within the geographic
boundaries of state “B” if he/she also held a notary
commission issued by state “B.”
We would submit that these concerns about
jurisdictional limits of U.S. notaries apply equally, if not
with greater force, when the notary is present in a
foreign country as opposed to a different U.S. state.
The State Department is concerned that the
Committee’s proposal does not adequately take into
account foreign State sovereignty concerns, and that if
the proposal were implemented, individuals
performing such notarial acts could be at risk of civil
and/or perhaps criminal penalties for the performance
of regulated services without authorization.
Key points:
 The sovereign authority to govern the performance
of official acts such as notarials is possessed by
each State within its jurisdiction and cannot be
granted solely by a law enacted in another State.
 A U.S. law that purports to authorize persons to
perform official acts in foreign jurisdictions could
be viewed as disregarding the sovereignty of
foreign States.
 Even if a person is authorized to perform legal
services in a foreign State, it may be the case that
such services do not include notarial functions.
 Persons performing notarial acts in a foreign State
without authorization under the law of the
jurisdiction in which they are located may be in
violation of the law and subject to civil or criminal
sanction.
 The Department of State is very concerned with
the welfare of U.S. citizens overseas and cautions
them to abide by local laws when traveling or
residing overseas.
 In States where the Vienna Convention on
Consular Relations is in force, U.S. Consular
Officers are authorized to perform notarial services
in accordance with the Convention.
 In States that are not Parties to the Convention,
performance of notarial services is regulated by the
domestic laws of those States.
 Notarial services are available at U.S. Embassies
and Consulates worldwide regardless of the
nationality of the requestor and are offered by
appointment or on a walk-in basis depending on
location and workload.
 In States where the Hague Apostille Convention is
in force, locally notarized documents may be
authenticated for use in the United States through
the relatively simple Apostille process.

EUROPE UPDATE
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French Notaries
by Stéphane de Navacelle
The attributions of a French notary, a notaire, extend well
beyond those of an American notary public. One key
difference is that a French notary, much like a lawyer, has
a duty to provide legal advice to his or her client. In
2012, the 9311 French notaries advised over 20 million
clients, in connection with capital transactions exceeding
€600 billion in aggregate, and drafted over four million
actes authentiques (authentic documents).
For some specific transactions, the involvement of a
notary is mandatory, under penalty of nullity of the act,
e.g., lease of an establishment that serves alcohol, a
marriage contract, an act for the recognition of a child,
specific wills, and mortgages on real property.(1)
Notaries are also required to register acts constituting
liens over real property in specific public registries
(hypothèques), not as a condition of validity, but for
purposes of opposability to third parties.(2)
A French notary is a public officer and has a mission of
public authority for authentication and conservation of
acts. Notaries are located throughout the country
according to a geographic distribution determined by the
Minister of Justice and are paid emoluments for the creation
of authentic acts by the notary’s clients at a rate set by the
State.(3) In France, notaries are responsible for issuance
of the “authentic instrument” pursuant to which debtors
acknowledge the enforceability of claims against them
that is a basis of a European Enforcement Order
(“EEO”).(4)
Authentication of documents
The acte authentique (authentic document) is an act with the
seal of the State that is authoritative over those who have
signed it and for third parties, including government
agencies. The authentication is highly effective because it
is proof of date and content and can be challenged only if
the validity of document is in question.
In addition to drafting acts, notaries are responsible for
the conservation of acts that are filed before them. Acts
must be kept for a 75 year period or up to 25 years after
the date of death of the parties.(5)
French notaries are also required to issue interested
persons, e.g. beneficiaries, enforceable copies and copies
of acts that they have received. Notaries may not issue
copies to any other third parties without a court order.
Main areas of practice
With respect to family law, the French notary’s role
includes registering wills, authenticating important acts
such as marriage contracts, settlements between spouses,
significant donations, and recording inheritance
agreements. They keep records of transactions and
impartially advise all parties about estate planning issues.
In the field of property law, French notaries also have a
prominent role in land registration. In fact, only French
notarial acts, authentic documents established by a
competent administrative authority, and court orders,
give rise to an opposable transfer of land. A notary is
required to formalize negotiations for sale, including the
signature of pre-contractual agreements, and of real
property transactions. A French notary maintains
records of real estate transactions, collects taxes
(including on capital gains relating to the sale of real
estate), and drafts deeds that serve as proof of
ownership.
With respect to company law, the role of a French
notary includes the formalization of specific corporate
resolutions.
More generally, some contracts containing an obligation
to pay a sum of money can be made enforceable if
authenticated by a notary. In such instances, the creditor
may be able to obtain payment without a court decision.
Professional secrecy
Much like lawyers, notaries are bound by a strict rule of
notary-client privilege that extends to all matters assigned
editors.
One key difference is that a French notary,
much like a lawyer, has a duty to provide legal
advice to his or her client.

EUROPE UPDATE
Issue 4 Page 16
to them. Violation of the notary-client privilege rule is a
crime(6) and a violation of the rules of a professional
ethics, which may lead to disciplinary sanctions.(7)
However, in addition to the obligation to cooperate with
tax authorities(8)and to respond to specific court orders,
notaries must report to the national financial intelligence
unit (TRACFIN) any suspicion of money laundering.(9)
A notary may not inform a client that such a report was
made.
Rules of professional ethics
In addition to specific constraints related to public
service, notaries must comply with rules of professional
ethics. A notary can be held civilly liable for damages
resulting from any wrongdoing committed in the course
of the notary’s functions.(10) A rule of solidarity among
notaries applies to the civil liability. Payment made
pursuant to a notary’s civil liability will be made by an
institution funded by
contributions by all French
notaries.(11)
A notary who fails to inform
a client of uncertainties and
dangerous aspects of a
transaction may face
disciplinary sanctions. If a
notary commits a serious criminal offense, e.g.,
embezzlement or fraud, the notary will likely be more
heavily sanctioned than an ordinary citizen.(12)
Foreign authentic acts
A foreign authentic act is generally presumed valid in
France;(13) however, French law provides French
notaries a monopoly on the authentication of acts in
certain fields, e.g. mortgages on real property.(14)
Outside such a monopoly, the foreign act produces its
effects in France if the interest requiring authenticity is
recognized in France. Moreover, whether the foreign act
is enforceable in France is established by determining
whether the foreign notary played a role in respect to the
act analogous to the role that a French notary would have
played respecting the act.(15)
The European Regulation on EEOs provides a clear
basis for recognition in France of a notarial act created in
another EU Member State to constitute an EEO.(16)
The EEO is an act drafted or registered as an authentic
instrument, the authenticity of which attaches to the
signature and the content of the act. The EEO is
established by an authorized public authority or any
other authority specifically authorized to do so. The
European Regulation on EEOs precludes European
Union Member States in which an act is proof of
signature only from creating an EEO. This is consistent
with the approach under French law that for a foreign
act to be enforceable, the authentication must pertain to
the content of the document as well as the signature.
Documents drawn up by a French notary meet the
definition of an EEO. A French notarial act in respect
of an EEO can be enforced in any EU Member State.
The creditor needs only to apply to the authorities in
charge of enforcement in the Member State in which the
creditor desires the act to be enforced.
Electronic signatures
Pursuant to the law of
March 13, 2000
electronic documents
can now serve as
evidence, i.e., an
electronic document can
have the same probative
force as a paper document. On August 10, 2005 a decree
was issued to allow notaries to use electronic documents.
The first authentic electronic act was signed in October
2008. In practice, the act is computerized, read on screen
by the notary, signed by the parties on an electronic
tablet and approved by a notaire with an encrypted USB
key that contains identification and signature of the
notaire. The parties must be present in person (or have
sent a proxy itself notarized by a notaire) so the interest
is only limited. Other than saving time and being more
eco-friendly, this act does not change much.
It is imaginable that, as long as the person can be clearly
identified (thought a USB key or teleconference) that an
authentic act could be signed from a distance. There is
no indication that notaires, or anyone else in France, is in
favor of such an evolution.
Moreover, whether the foreign act is enforceable
in France is established by determining whether
the foreign notary played a role in respect to the
act analogous to the role that a French notary
would have played respecting the act.

EUROPE UPDATE
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Competition with Lawyers
New possibilities for lawyers have increased competition
between the two professions. Introduced by legislative
reform in 2011,(17) an act of lawyer (acte d’avocat) is a
document drafted and signed by the parties and
countersigned by a lawyer. As such, it is an act that has
enhanced probative force compared to a private
agreement between parties. This act attaches probative
value to the identity of the parties and is opposable to
persons whose rights derive from the rights of the parties
to the act, although unlike a signature before a US notary
public, it is not opposable to third parties generally.
(1) Art. 504, General Tax Code; Art. 265-2, 316, 971, 1394 and
1601-2, Civil Code; Art. L.143-20, al.2, Commercial Code.
(2) Art. 4 of the Decree no. 55-22 of January 4, 1955.
(3) Decree no. 78-262 of March 8, 1978.
(4) Council Regulation (EC) no. 805/2004 of April 21, 2004.
(5) Art L.211-4, Inheritance Code.
(6) Art. 226-13, Criminal Code.
(7) Art. 3.4, Règlement national et inter-cours du notariat
approved by the Minister of Justice, July 21, 2011; Cass. Crim.
March 3, 1938, DH 1938. 341.
(8) Art. 806, General Tax Code.
(9) The TRACFIN (Traitement du Renseignement et Action
contre les Circuits FINanciers clandestins) is a national
financial intelligence unit established in 1990. Upstream of the
judicial phase, the unit’s main mission is to collect, analyze and
investigate the “declarations of suspicions” reported by
professionals required to do so, for the purpose of transmission
to enforcement authorities. In addition, TRACFIN collects
information, which is analyzed and investigated before being
reported to enforcement authorities when a crime is thought to
have been committed.
(10) Art. 1382, Civil Code.
(11) Decree no. 55-604 of May 20, 1955.
(12) Art. 314-3 and 441-4 al. 3, Criminal Code.
(13) The French authorities can require the legalization of
foreign public documents to certify the authenticity. In this
case, if a document originates from a country that has signed the
Hague Convention of 5 October 1961 abolishing the
requirement of legalization for foreign public documents, it will
be accompanied by an apostille certification.
(15) P. Callie, L’acte authentique établi à l’étranger, REVUE
CRITIQUE DE DROIT INTERNATIONAL PRIVE 377 (2005).
(16) European Community Regulation no. 805/2004 of April
21, 2004 on the European Enforcement Order.
(17) Law no. 2011-331 of March 28, 2011.
The Notary Public in Italy
by Alessandro Steinhaus
The role of an Italian notary, a notaio, is generally to
avoid fraud in legal documents. The position of notaio
accordingly incorporates elements of the work and
duties both of a public official and of a specialized
professional.
The public function of the notaio includes the
preparation of acts between living parties and of
testamentary instruments, the conferral of public faith
upon such documents, the custody of them, and the
issuance of copies, certificates and extracts.(1)
Because a notaio exercises the power of a public
official, a document created with the participation of a
notaio is a “public act”.(2) Such a writing provides
conclusive evidence of the declarations of the parties
and of the conclusion of the act so attested. That is,
such a writing is invested with publica fides, the public
trust resulting from the delegation by the State to the
notaio of the power to authenticate and to certify.
Only a charge of forgery (querela di falso) can overturn
the probative value accorded to the source of the
document, the creation of the document, and in
particular the date and place in which the document
was constituted.(3)
The notaio thus plays an important role not only as to
instances for which the law mandates the intervention
of the notaio, such as donations, corporate and
partnership charters, and corporate mergers,(4) but
also in any instance where the evidentiary effects of a
notaio’s participation in the conclusion of a writing may
have value. This latter aspect of the activities of a
notaio is closely associated with the elements of the
notarial role pursuant to which the notaio functions as
a professional service provider to the parties. In this
regard, the notaio operates as an experienced
editors.

EUROPE UPDATE
Issue 4 Page 18
draftsperson, representing the interests of all the
parties before the notaio, quite unlike the role of an
attorney who would have a duty of loyalty only to the
attorney’s specific client or clients.(5) The duty of the
notaio is the creation of a document that reflects the will
of all the parties in the best possible way and with the
highest degree of legal certainty attainable.(6)
The public and private dimensions of the notaio’s
activity correspond to a notaio’s duty to provide service
to anyone who requests it and the prohibition against
providing service in respect of any document contrary
to law, good custom, or public order.(7)
Should registration of a foreign act within a notaio’s
records be desired for evidentiary purposes, the notaio
is required to make specific findings as to the act.(8)
The notaio must ascertain whether the act has been
received or authenticated by a suitable foreign
equivalent, and that it is either a public act or an
authenticated private writing (atto pubblico or scrittura
privata autenticata). If not, the document will be
deemed, and have the effect of, an unauthenticated
private writing (scrittura privata non autenticata).(9) The
notaio must determine that the parties’ intended use of
the document requires its recordation in the notaio’s
registry, and that it has been legalized.(10) The notaio
must assess whether the act is contrary to public order
or to any imperative norm of Italian law (ordine pubblico
and norme di applicazione necessaria).(11) Legalization is
not required if the law provides an exemption, e.g. for
an act signed by an Italian diplomatic or consular
representative, or when the act bears an apostille in
conformity with the Hague Convention of October 5,
1961.(12) In conformity with the general rule that all
notarial acts be drafted in Italian, the act must also be
translated into Italian.(13) An exception pertains to
German language acts to be used within Trentino-Alto
Adige, an Italian Special Statute region within which
there are provisions of constitutional status for
bilingualism. In that region, the law allows the drafting
of notarial acts in German as well as in Italian.(14) The
same is true for French in the Special Statue region of
Val d’Aosta.
Registration in a notaio’s records of an act bearing a
signature incorporated by a foreign authority, e.g. an
American notary public, presents particular issues.
Many legal scholars maintain that such authentication
might be recognized as valid under Italian law only if it
is ascertained that the powers and the operational
procedures followed by such a foreign authority are
analogous to those of a notaio under Italian law.(15) In
this view, with the obvious challenges, it must be
established that the foreign authority verified the
identity of the parties while in the foreign authority’s
presence, the foreign authority undertook the same
control of the lawfulness of the act as would have a
notaio, and finally, the foreign authority’s role in the
foreign legal system is in the relevant instance
equivalent to that of a notaio in Italy.(16) Thus, given
the intrinsic differences between the roles and the
activities of a notaio under Italian law and of an
American notary public, the acceptance for purposes
of Italian law of an act bearing a signature
authenticated by an American notary public is not
automatic; rather, a specific inquiry must be made for
each case.(17)
To assure the proficiency necessary in the provision of
this public service, the license to be a notaio is accorded
only to persons who have earned a law degree,
completed an apprenticeship, and passed a
competitive examination.(18) Each notaio is assigned
to a specific notarial district and prohibited to practice
outside it, in order to prevent competition.(19) This
rule is linked with the numerical limitation on the
notarial positions available for each district.(20)
Although the notaio is a public official,(21) the notaio is
not a public employee. The notaio accordingly receives
no governmental salary, but rather is remunerated by
the fees of the notaio’s clients, according to a fee
schedule set by law.(22)
In summary, the services of a notaio are required when
the law mandates a notaio’s involvement for the
underlying transaction to be valid. In other instances,
a notaio’s services are highly beneficial even if not
strictly required. The services of a notaio overlap in

EUROPE UPDATE
Issue 4 Page 19
many ways with those performed by an American
lawyer, e.g. legal counseling related to transactions. A
notaio will typically have knowledge and experience in a
wide range of areas of private law, valuable in
particular for the consummation of transnational legal
transactions. Thus, collaboration with a notaio can
often be useful in order to expand an American
lawyer’s advocacy function, as the notaio can provide an
impartial counsel to all the parties, while the lawyer can
concurrently advocate on behalf of the lawyer’s specific
client, which nonetheless benefits from the notarial
impartiality.
(1) Art. 1, Law no. 89 of February 16, 1913.
(2) Id.
(4) Articles. 782, 2328, 2504 and 2521 Civil Code.
(5) Art. 47, Law no. 89 of February 16, 1913. See also G. Casu and
G. Siccherio, LA LEGGE NOTARILE COMMENTATA 6-10 (2010).
(6) G. Petrelli, L’indagine della volontà delle parti e la «sostanza»
dell’atto pubblico notarile, RIVISTA DEL NOTARIATO, no. 1/2006.
(7) Articles 27 and 28, Law no. 89 of February 16, 1913.
(8) Art. 106 (4), id.
(9) G. Casu and G. Siccherio, at 499-500.
(10)Id. at 501.
(11) As provided by Art. 28, Law no. 89 of February 16, 1913. See
G. Casu and G. Siccherio at 502.
(12) Id.
(14) Art. 30, Presidential Decree no. 574 of July 15, 1988.
(15) A. Chianale, La forma degli atti autentici stranieri, RIVISTA
DEL NOTARIATO, no. 1/2008. See also G. Petrelli, Pubblicità
legale, apparenza e affidamento nel diritto internazionale privato,
ATTI NOTARILI NEL DIRITTO COMUNITARIO INTERNAZIONALE, Vol.
I, 321 (2011, UTET) and Ockl, Le scritture private autenticate
provenienti dall’estero, GLI ATTI PROVENIENTI DALL’ESTERO. ATTI
DEL CONVEGNO, Milan, 2007, at 35.
(16) Id. at 38. See also Marcoz, Il deposito degli atti esteri, la
legalizzazione e l’Apostille, GLI ATTI PROVENIENTI DALL’ESTERO.
ATTI DEL CONVEGNO, Milan, 2007, at 63, and Scalamogna, Forma
e pubblicità per gli atti formati all’estero relativi a società italiane,
GLI ATTI PROVENIENTI DALL’ESTERO. ATTI DEL CONVEGNO, Milan,
2007, at 87 and 91.
(17) A. Chianale, La forma degli atti autentici stranieri, in RIVISTA
DEL NOTARIATO, no. 1/2008
(19) Art. 27, id.
(20) Art. 4, id.
(21) Art. 1, id.
(22) Art. 74, id.
Notaries in Germany
by Anna Engelhard-Caldwell
German notaries (Notar if a man and Notarin if a
woman) are highly regarded in Germany. They serve
an essential public function as independent and
neutral officers of the court system and a private
function as impartial drafters of various agreements
and testaments. In Germany other than state courts
and federal courts, only German notaries are
authorized to attest to the validity of signatures and to
certify documents in Germany. Their actions are
governed by law, not by the needs or demands of an
individual or party.
A German notarial attestation is considered to be an
act of public authority and may be accomplished only
by a German notary. If a US notary public or an
American lawyer were to attest to the validity of a
signature in Germany, German law would view such
an attestation as a violation of international law
principles pertaining to its territorial sovereignty.
Articles 3 and 5 (f) of the Vienna Convention on
Consular Relations identify notarization as a consular
function limited to performance at consular posts.
Any notarial activity, including attestation of the
validity of a signature, performed by a notary public
from a foreign country on German territory, is invalid.
Indeed, anyone not a German notary who purports to
attest to the validity of a signature in Germany would
be subject to criminal charges pursuant to §132 of
Germany’s Penal Code (Strafgesetzbuch, StGB) for the
unauthorized assumption of authority.
The ministries of justice in the various German states
govern notaries. Notaries report to the presidents of
the local superior court and of the court of appeals.
Nine of the sixteen German states require that a
notary be admitted as a notary only; while five states
editors.

EUROPE UPDATE
Issue 4 Page 20
allow notaries to also be admitted as attorneys. Two
states have separate notarial territories that allow either
attorney-notaries or only notaries who do not practice
law. Those notaries admitted as attorney-notaries are
required to strictly separate their impartial notary
function from their attorney function. Notaries are
appointed permanently but must resign by age seventy.
The federal chamber of notaries (Bundesnotarkammer,
BNotK) is a public entity. Its members are the twenty-
one local notary chambers (Notarkammern) whose
membership consists of the notaries admitted in their
territories. The BNotK oversees several specific
notarial registries, such as the central registry for care
planning (Zentrales Vorsorgeregister), the central registry
for testaments (Zentrales Testamentsregister), the site for
electronic communication among notaries (NotarNet)
and the German Notarinstitut (DNotI), as a member
site.
Notaries are especially qualified and experienced legal
officers. They must have passed both the first and
second legal state exams (qualification to serve as a
lawyer and/or, in theory, as a judge), worked a
minimum of five years as an attorney, successfully
completed a comprehensive examination (since May
2011), and served 160 hours under an experienced
notary. New notary appointments are dependent upon
a vacancy in the particular geographic area where the
notary resides and are subject to bidding in connection
with proof of personal suitability and performance on
the comprehensive examination.
There are about 8,000 notaries in Germany. The
geographic location of a notary’s office is regulated by
law in order to assure that the entire population has
convenient access. The average distance between any
community and a notary’s office is seven to eight
kilometers anywhere in Germany, including rural
areas.
Notarization is legally required in many instances to
assure that transactions with far-reaching personal and
economic consequences are undertaken only subject
to, and with the benefit of, notarial supervision and
intervention. It is the duty of a notary to fully explain
the contents of an agreement or document to all
parties. The notary has the duty to ascertain that all
parties are treated fairly and to assure that
inexperienced participants are not disadvantaged. The
goal is to accomplish a balanced agreement in terms of
rights and legal drafting options.
By law, notaries are involved in real estate
transactions, marriage and divorce
contracts, adoption, last wills, gift
contracts, estate distribution, the
establishment of a corporation
(Gründung einer Gesellschaft), commercial
r e g i s t r y e n t r i e s
(Handelsregisteranmeldung), living wills,
health care power of attorneys, and
various alternative dispute resolution
vehicles such as divorce agreements,
disputes among heirs, and arbitration. Notaries have
the authority to render documents legally enforceable.
For example, arbitration awards can be made
executable by notarization, thus eliminating the need
to have a court issue a writ of execution. Notaries can
administer oaths, issue receipts and safeguard
valuables. Due to the public character of the office,
notaries are not allowed to refuse their services unless
there is a convincing reason for the refusal.
The fees for notarization are set in the law on costs of
non-contentious jurisdiction (Kostenordnung, KostO;
Gesetz über die Kosten in Angelegenheiten der Freiwilligen
Gerichtsbarkeit). While the fees depend on the value of
the transaction, they are lower than in France or the
Nine of the sixteen German states require that a notary be
admitted as a notary only; while five states allow notaries
to also be admitted as attorneys. Two states have separate
notarial territories that allow either attorney-notaries or only
notaries who do not practice law. Those notaries admitted
as attorney-notaries are required to strictly separate their
impartial notary function from their attorney function.

EUROPE UPDATE
Issue 4 Page 21
UK. The cost of a real estate transaction in Germany is
also low, comparing the notarial fees to the total cost
of US real estate transactions, in which a real estate
attorney (and not a notary) handles the closing and title
insurance is customarily used.
Professor Peter L. Murray of Harvard University was
commissioned by the Council of EU Notaries
(C.N.U.E.) to perform an independent study in 2007.
His report stated that the average cost for a notary in a
real estate transaction in Germany was less than 1% of
the overall cost, and less than in the US. He found
that Germany, when compared to the UK or the US,
had a higher level of reliability concerning real estate
registry entries, a lower likelihood of real estate
litigation, and no need for the extra expense of title
insurance. A simple attestation costs ten euros. Most
routine attestations, such as the attestation for an entry
in the merchants’ registry, cost twenty-one euros, or
forty-two euros if the attestation is supplemented by
legal consultation, document drafting and execution of
entry.
Overall, the German notarial system has been praised
for a high level of transparency, quality of notarial
documentation and low risk of litigation in connection
with contract defects. Various German and European
legal professionals dispute the World Bank’s view
(published in Doing Business Reports) that notarial
consultation, attestation and certification is no longer
feasible and too expensive. The German consensus is
that the lawfulness of a country is measured by the
efficiency and validity of its infrastructure involving its
citizens’ ability to enter into contracts which cannot be
questioned and/or broken. Notaries are seen as an
essential component in the prevention of unnecessary
litigation and the reliability of public registries such as
the merchants’ registry (Handelsregister) and real estate
registries (Grundbuch). Good faith (guter Glaube) is
viewed as the basis for good business, and German
notaries foster the public’s expectation of good faith in
the viability of contracts and registry entries.
Interaction of Civil Law and Common Law
Notaries: The Mexican Experience
by Juan Francisco Torres Landa R. and
María Angélica Nieves S.
Here we consider how the differences between the
Mexican civil law notary and the figure of notary public
prevailing in the United States can trigger some
difficulties in international transactions. We will list
some examples of what happens in our daily activities
where these differences materialize and what may be
some practical recommendations.
International Agreements:
a. The Hague Apostille Convention (the “Convention”):
The Hague Convention Abolishing the Requirement for
Legalisation for Foreign Public Documents, known as
the Apostille Convention, has 72 member countries.
The Apostille replaces the formalities of a full
legislative/domestic certification process and is only
valid when issued by a competent authority in each
member country. The Apostille is used to certify the
authenticity of public documents, such as birth,
marriage and death certificates, extracts from
commercial registers, patents, court rulings, notarial acts
and notarial attestation of signatures, and academic
diplomas issued by public institutions, among other
documents listed in Article 1 of the Convention.
The Convention’s Article 3 states that the Apostille
certifies: (i) the authenticity of the signature; (ii) the
capacity in which the person signing the document has
acted; and (iii) the identity of the seal or stamp which it
bears. It does not extend so far as to attest to the
contents in the document.
The usual problem that emanates from the use of the
Apostille is that the certification will not cover the actual
contents of the document being certified. The
difference is material when it comes to notarized
editors.

EUROPE UPDATE
Issue 4 Page 22
documents because in the common law tradition notaries
usually do not certify anything but the identity of the
persons appearing, whereas civil law notaries will actually
certify the contents, accuracy and legality of the
information included in the respective notarial act. Once
this difference is recognized, the Mexican practitioner
must assure that the inbound document meets the
required certifications, even before the foreign notary
provides the notarization, so that upon receipt in Mexico
it will meet the local needs because the mere
participation of the notary will likely not suffice. In the
case of outbound documents, the foreign practitioners
must know that the document will be lengthier and more
complicated than usual, precisely due to the Mexican
notary’s full involvement in the legal contents and
accuracy.
b. Protocol on Uniformity of Powers of
Attorney which are to be Utilized Abroad (the
“Protocol”):
Countries that are parties to the
Protocol are the Pan-American Union,
including the United States, Brazil,
Colombia, El Salvador, Mexico and
Venezuela, but not Canada.
The Protocol’s Article 1 sets out the
procedure to be followed in the
preparation of a power of attorney on
behalf of a natural person, third person,
or a judicial person. This article states
that the official (notary, registrar, clerk of court, judge,
or any other upon whom the law of the respective
country confers such functions) must certify from
personal knowledge the identity of the
appearing party and also that party’s legal
capacity to execute the relevant
instrument.
If the certification of the power of
attorney involves a third party
representing the signer, or a legal entity,
then further requirements must be
fulfilled, such as certifying that: (i) the
third party has the authority to represent
such legal entity; (ii) the legal entity’s
name, organization, home office and legal existence; and
(iii) that the purpose of the instrument is within the
scope of purposes or activities of the legal entity.
Moreover, the Protocol’s Article 5 which states that the
powers granted in any of the member countries of the
Pan-American Union, executed in accord with the rules
of the Protocol, must be given full faith and credit,
provided, however, that they are legalized in accordance
with the special rules provided for that purpose. This
provision also recognizes that notaries duly
commissioned as such under the laws of their respective
countries must be deemed to have authority to exercise
The usual problem that emanates from the use of the
Apostille is that the certification will not cover the actual
contents of the document being certified. when it comes to
notarized documents because in the common law tradition
notaries usually do not certify anything but the identity of
the persons appearing, whereas civil law notaries will
actually certify the contents, accuracy and legality of the
information included in the respective notarial act.
Mexico’s Supreme Court issued a binding precedent in
relation to the formal requirements that according to the
Protocol should apply, . . . the powers granted by foreign
companies in order to have effect in Mexico, must state that
the notary’s function, or its equivalent, is not limited to mere
references to the documentation used to grant the power of
attorney, but rather also must involve the examination and
legal assessment of the value of the documents shown to the
notary, so that the notary’s statement thus constitutes a
certification that the principal has sufficient authority to
deliver the instrument, and thus meets the elements of the
intrinsic validity of a power of attorney.

EUROPE UPDATE
Issue 4 Page 23
functions and powers equivalent to those accorded to
native notaries by the laws and regulations of other
member nations without prejudice. This last part can
cause some problems, since, on this basis, the validity of
an inbound power of attorney granted by a non-lawyer
U.S. notary public in principle should not be challenged
in Mexico.
Due to the above, Mexico’s Supreme Court issued a
binding precedent in relation to the formal requirements
that according to the Protocol should apply, stating
therein that the powers granted by foreign companies in
order to have effect in Mexico, must state that the
notary’s function, or its equivalent, is not limited to mere
references to the documentation used to grant the power
of attorney, but rather also must involve
the examination and legal assessment of
the value of the documents shown to the
notary, so that the notary’s statement thus
constitutes a certification that the
principal has sufficient authority to deliver
the instrument, and thus meets the
elements of the intrinsic validity of a
power of attorney.(1) The latter means
that there is a further level of requirements for inbound
powers of attorney, as absent the required certification
on the corporate chain of authority, the document will
either not be recognized or its validity will be questioned
upon use in Mexico.
In the case of outbound powers of attorney, the
problems are less because the process in Mexico will
involve full details of the corporate chain of authority
and thus the other nations will, in most circumstances,
not have a problem recognizing full compliance with
both the Protocol and other associated requirements to
confirm the authority of the person granting the power
of attorney.
c. Practical Problems in Notarial Practice of Mexico and
Abroad:
Concerning a legal entity, the Protocol requires that the
power of attorney contain a statement as to the
authority of the Board of Directors to grant
powers of attorney, which is a problem for
common law countries, since powers of attorney
are less customarily used, and as such, company
by-laws will rarely make specific reference to the
authority of the board to grant powers of
attorney. This limitation normally leads a
common law notary to either omit the topic altogether
(creating a problem for an inbound power of attorney)
or to make legal conclusions concerning whether the by-
laws express general powers sufficiently broad to grant
the authority to the Board, which is something that a
non-attorney notary public rarely does and is probably
not legally trained to do so, or in some jurisdictions of
the United States even prohibited from so doing.
Another common practice in Mexico is that powers of
attorney must make a specific reference to Federal Civil
Code article 2554 in order to be valid and fully
enforceable. This reference is sometimes objected to, as
a foreign notary public in a common law jurisdiction is
often reluctant to make a reference that may involve
having to “certify” the law of Mexico, something such a
notary cannot do.
An additional event concerning which problems
frequently arise pertains to wills. While in the United
States, only the maker’s and the witness’ signatures are
necessary to validate such an instrument, in Mexico, in
the Protocol’s Article 5 the states that the powers granted
in any of the member countries of the Pan-American
Union, executed in accord with the rules of the Protocol,
must be given full faith and credit, provided, however,
that they are legalized in accordance with . . .
for inbound powers of attorney, . . . absent the
required certification on the corporate chain of
authority, the document will either not be recognized
or its validity will be questioned upon use in Mexico.

EUROPE UPDATE
Issue 4 Page 24
addition to the maker’s signature, the validation of a
notary public is required. Moreover a will granted
abroad will not be recognized in Mexico for in rem
actions (probate proceedings related to real property)
and thus a probate proceeding in which a Mexican court
will ascertain the rightful heirs is required. A practical
solution to this problem is the use of “mirror wills”,
which are identical wills drafted in each country, so that
the non recognition is not an issue, and each will only
deals with the property
pertaining to the country in
which it is issued.
Another example of problems
that have arisen in Mexican notarial practice relates to
Canada. As mentioned above, Canada is not a signatory
to the Protocol. Therefore, for a Canadian individual or
corporation to grant a power to be used in Mexico, there
are two options: (i) grant the power of attorney in
Canada in accord with the laws of the province in which
the power is granted; or (ii) grant the power according to
Mexican law, before an officer at the Mexican Embassy
or Consulate. A further limitation is that Canada is also
not a party to the Apostille Convention, which creates
additional logistic problems that must be addressed.
Because the Apostille is not an option in respect of
Canada, such instruments must be legalized with the
nearest Mexican Consulate.
Mexico has asserted a reservation in respect of the
Protocol, concerning the provisions of its Article 4,
stating that “aliens who are required, for the
performance of certain acts, to enter into the agreement
or waiver referred to in Section I of Article 27 of the
Political Constitution of the United Mexican States, must
grant a special power of attorney, expressly including as
one of its provisions the agreement and waiver above-
mentioned.” This provision, also known as
the “Calvo Clause”, is a required covenant
that must be included in inbound powers of
attorney for acts that involve the need to
make such reservation, i.e., the purchase of
real property, the creation of legal entities,
etc., as otherwise the representation process
will be limited in Mexico, and it will be
necessary to re-do the power of attorney.
In light of the foregoing, it is clear that the Convention
and the Protocol have facilitated the notarization of
documents, executed before foreign notaries for use in
Mexico and vice-versa, however, numerous problems
persist in practice. This situation merits an effort
among countries to harmonize these differences and to
facilitate international transactions among all countries,
regardless of their legal system.
Conclusions
Having seen the significant differences between the
notarial function of civil law and common law countries,
it is important for lawyers to gather information and
accumulate experience on the subject matter. In
particular, practitioners must devise practical ways to
deal with notarial problems that may arise in any type of
international operation, either inbound or outbound.
In our experience the conflicts that exist between
notarial practices around the world cannot be ignored.
Lawyers that work in cross-border transactions cannot
overlook to recognize the complexities that the need for
notarial instruments triggers. Anticipating those issues
and working towards preventive solutions are most
definitely advisable actions, as the consequences can be
quite damaging if the conflicts materialize.
(1) Binding precedent of Mexico’s Supreme Court of Justice no.
205452, June 1994 (Poderes otorgados por sociedades en el
extranjero para surtir efectos en México. Requisitos formales que
deben contener según el Artículo I del Protocolo sobre
Uniformidad del Régimen Legal de los Poderes)..
Canada is not a signatory to the Protocol. . . . for a
Canadian . . . to grant a power to be used in Mexico,
there are two options: (i) grant the power of attorney in
Canada in accord with the laws of the province in which
it is granted; or (ii) grant it according to Mexican law,
before an officer at the Mexican Embassy or Consulate.
Because the Apostille is not an option in . . . Canada, such
instruments must be legalized with the nearest Mexican Consulate.

Issue 4 Highlights Notaries and Signature Verification

Issue 4 Highlights Notaries and Signature Verification

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Issue 4 Highlights Notaries and Signature Verification