International forum on eNotarization and eApostilles

1
International forum on eNotarization and
eApostilles

• The impact of e-technology on notarial acts
  legal and technical possibilities and limits
• relevance for Apostille Convention
• William Kennair, Scrivener Notary, London, UK

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eNotarization and eApostilles

• The Notary is an officer who has been granted
  the authority of the State by delegation for
  certifying the documents whose author is the same
  Notary, assuring their conservation and their
  probative and executive force. Within the scope
  of the necessary independence of his duty the
  Notary practises it within the framework of a
  free profession that covers every legal
  non-contentious issue. His intervention, because
  of the advice that he gives the parties in an
  impartial but active way, as well as because of
  the wording resulting from it, grants the user
  the legal security that he seeks. This is even
  more guaranteed because the Notary is a legal
  professional with a high university
  qualification, and has acceded to his profession
  after several tests, courses and tenders, and
  practises it following strict disciplinary rules
  under the permanent control of a public
  authority, and thanks to a geographical
  distribution that permits to make use of his
  services throughout the national territory.
  Finally the intervention of the Notary in
  preventing eventual lawsuits and in simplifying
  the execution of proceedings is in fact an
  essential mechanism for the good administration
  of justice"

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eNotarization and eApostilles
Traditional role of the Notary

• The identification of persons, their authority
  and capacity according to the law of the place at
  which the Notary makes that authentication
• The preparation of a document according to the
  form required by the jurisdiction in which it is
  created so that in matters of form it may be
  given recognition in the place in which it is to
  be enforced or carried into effect
• The ascertaining of the will of the parties to
  enter the transaction after the giving of
  independent legal advice
• The authentication of the due execution of a
  document according to the place of its execution
• The authentication of the content of a document
  or transaction in a way which will provide
  assurance, evidence or enforceability depending
  on the law of the place in which it is to be used
• The preservation of reliable evidence of the
  execution, the form and the content of the
  document by the making and retention of a
  trustworthy record.
• Ancillary services these include the giving of
  legal and other advice, and the provision of
  translation and communication services.

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eNotarization and eApostilles

• In electronic form there is an exact
  parallel, but different
  problems , for all these activities to be
  fulfilled

• The identification of persons, their authority
  and capacity according to the law of the place at
  which the Notary makes that authentication
• The preparation of a document according to the
  form required by the jurisdiction in which it is
  created so that in matters of form it may be
  given recognition in the place in which it is to
  be enforced or carried into effect
• The ascertaining of the will of the parties to
  enter the transaction after the giving of
  independent legal advice
• The authentication of the due execution of a
  document according to the place of its execution
• The authentication of the content of a document
  or transaction in a way which will provide
  assurance, evidence or enforceability depending
  on the law of the place in which it is to be used
• The preservation of reliable evidence of the
  execution, the form and the content of the
  document by the making and retention of a
  trustworthy record.
• Ancillary services these include the giving of
  legal and other advice, the provision of
  translation, and registration and communication
  services.

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eNotarization and eApostilles
What is e-notarisation?

• What form will it take?
• A digital signature?
• What safeguards are needed?
• Who will use it?
• How will it be used?
• Will it last?
• Is it widespread yet?

• Form
• Authentication
• Due execution
• Recognition
• Assurance
• Evidence
• Enforceability
• Preservation of reliable evidence
• Registration
• Communication

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eNotarization and eApostilles

• Just as every State has created its own
  domestic law for the conventional conduct of
  business so each State has tended to create its
  own domestic law in relation to electronic
  commerce. The effectiveness of their intervention
  in electronic commerce within their own
  jurisdictions will be affected by the limitations
  imposed by those jurisdictions.
• The effectiveness of their intervention in
  international transactions depends on the level
  of recognition which is accorded to their
  authority in the jurisdiction other than their
  own in which the transaction is to be given force
  and effect.

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eNotarization and eApostilles

• From a legal and business point of view, the
  notarial system has already addressed many of the
  problem issues
• Notarial governing bodies can be compared to
  CAs, in that they license individual notaries,
  who in turn act for their clients in a
  certification function.
• Notaries, especially those in the civil law
  tradition, are personally responsible for their
  actions, and most carry liability insurance to
  cover claims, even when those claims come from a
  third party who has relied upon a notarial
  certificate.
• A notarial certificate assumes responsibility for
  the contents thereof, thus relieving the relying
  party from further inquiry beyond the notary
  himself.
• Notarial rules require an established audit trail
  and retention of documents for specified periods.
• The notarial infrastructure ensures financial
  liability, through insurance, mutual funds, or in
  some cases, through a level of state guarantee.
  (The system has existed for hundreds of years and
  has been able to support any claims made upon it)
• Notaries are appointed by the state, and
  additionally there is an element of delegated
  state function in the office of a notary, so that
  the concept of trust is already built in.
• Compliance audit is ensured through the notarial
  disciplinary rules.
• There are established privacy and data protection
  rules

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eNotarization and eApostilles

• From a legal and business point of view, the
  notarial system has already addressed many of the
  problem issues
• Notarial governing bodies can be compared to
  CAs, in that they license individual notaries,
  who in turn act for their clients in a
  certification function.
• Notaries, especially those in the civil law
  tradition, are personally responsible for their
  actions, and most carry liability insurance to
  cover claims, even when those claims come from a
  third party who has relied upon a notarial
  certificate.
• A notarial certificate assumes responsibility for
  the contents thereof, thus relieving the relying
  party from further inquiry beyond the notary
  himself.
• Notarial rules require an established audit trail
  and retention of documents for specified periods.
• The notarial infrastructure ensures financial
  liability, through insurance, mutual funds, or in
  some cases, through a level of state guarantee.
  (The system has existed for hundreds of years and
  has been able to support any claims made upon it)
• Notaries are appointed by the state, and
  additionally there is an element of delegated
  state function in the office of a notary, so that
  the concept of trust is already built in.
• Compliance audit is ensured through the notarial
  disciplinary rules.
• There are established privacy and data protection
  rules

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eNotarization and eApostilles

• What is legalisation (or legalization!)?
• Authentication
• Element of Trust
• Consular certification
• Chain of certificates
• Apostilles

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eNotarization and eApostilles

• Convention abolishing the requirement of
  legalisation for foreign public documents.
• 5th October 1961
• Article 2
• ..legalisation means only the formality by which
  the diplomatic or consular agents of the country
  in which the document has to be produced certify
  the authenticity of the signature, the capacity
  in which the person signing the document has
  acted and, where appropriate, the identity of the
  seal or stamp which it bears.

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eNotarization and eApostilles

• Since e-transactions are worldwide and
  instantaneous, do we really need to insert
  another level of certification into the system?

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eNotarization and eApostilles

• Convention abolishing the requirement of
  legalisation for foreign public documents.
• 5th October 1961
• Article 1
• The present convention shall apply to public
  documents which have been executed in the
  territory of one contracting state and which have
  to be produced in the territory of another
  Contracting State.
• For the purposes of the present Convention, the
  following are deemed to be public documents
• documents emanating from an authority
• administrative documents
• notarial acts
• official certificates .. , such as .. notarial
  authentications of signatures

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eNotarization and eApostilles

• What comprises a public document for the purposes
  of the Convention, when it exists only in
  electronic form?
• Will we need a new Convention?

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eNotarization and eApostilles

• Because law looks backwards, its has difficulty
  dealing with change.In order to understand law
  one must understand not only law's past, but also
  law's intrinsic "pastness." This tension between
  law's "pastness" and its confrontation with
  emerging technologies is nowhere more apparent
  than with respect to the Internet (Frederick
  Schauer, Internet Privacy and the Public-Private
  Distinction, Jurimetrics, vol. 28, n. 4, p. 555)