The role of the Notary

Without correct notarisation, important transactions may be seriously delayed.

Worse, your organisation could be exposed to financial loss or legal liability. If you work for a UK-based organisation which deals internationally, you’ll be expected to understand the role of the notary.

Understanding notaries 

A qualified lawyer, a Notary Public is a member of the oldest branch of the legal profession in the UK. In England and Wales, notaries have the equivalent of a law degree as well as a specific notarial practice qualification. They’re appointed by the Court of Faculties of the Archbishop of Canterbury and are subject to regulation by the Master of the Faculties. The rules governing notaries are very similar to those for solicitors. 

Notaries have to renew their practicing certificates every year and can only do so if they’ve complied with the rules. 

Scrivener Notaries 

Scrivener Notaries have been examined in matters of civil law and in two languages other than English. This highly specialised category part of the profession has its roots in London’s history as an international trading centre. Nearly all of a Scrivener Notary’s work is international in nature, although some operate in areas of domestic English legal practice. 

Qualifying examinations for Scrivener Notaries are set by the Scriveners Company (“the Worshipful Company of Scriveners of the City of London”). One of the oldest City livery companies, the Scriveners Company dates back to 1373. 

With a Scrivener Notary, a client has access to a unique combination of specialist legal skills and linguistic expertise. 

What notaries do 

When you process transactional and other cross-border arrangements, official documents need to be notarially certified - or ‘notarised’. This is especially true when you’re dealing with civil law jurisdictions and certain emerging and eastern markets. The notary’s role here is to act as an impartial third party and certify facts demonstrated to them. 

Notaries are often called upon to notarise powers of attorney for use abroad. Here, more often than not, notarisation consists of a certification attached to a document confirming: 

• The identity and capacity of the signatory(ies); 
• That the power of attorney has been properly executed and is binding according to the law of England and Wales, and 
• That by virtue of international law equivalency agreements, the power of attorney is valid in the jurisdiction local to the transaction.

In some cases, this is to give comfort, while in others it’s essential to the transaction or dealing. 

You can use a notary for any scenario where you need to present a legal record of an event or a fact. As an in-house lawyer, you may need UK notarisation for: 

• Copies of corporate, government and judicial documents when setting up branches, opening bank accounts or registering to provide services overseas; 
• Executing a property transfer deed at a distance through an attorney-in-fact. Some jurisdictions require notarisation of the power of attorney for the transfer to be recorded in the local property register; 
• Documents relating to transnational business, loan agreements, mortgages and trademark applications; 
• Showing your capacity to instruct local counsel in an overseas jurisdiction; 
• Declarations of ownership, bills of sale, mortgage instruments and transfers and discharges of mortgages; 
• Certifying personal identification documents to meet overseas 'know your customer' (KYC) requirements; 
• Administering oaths for the purposes of affidavits and depositions for use in foreign court proceedings; and 
• Noting or certifying transactions relating to bills of exchange and other negotiable instruments. 

Some notaries – and, of course, all Scrivener Notaries - hold additional qualifications in foreign languages and law. This allows them to prepare and certify translations acceptable the world over. 

Your notary will also help you understand what you’re signing and carry out checks to identify potential fraud. In this regard, the notary acts as your gatekeeper. 

The probative force of notarial acts 

Reliance is placed on the truth of the matters stated in notarial acts. 

In the words of the British barrister and politician, Lord Eldon: 

“A notary by the law of nations has credit everywhere” (Hutcheon-v-Mannington (1802) 6 Vesey, Jun. 823). 

And the faculty a notary receives on appointment from the Archbishop of Canterbury contains the words: 

“… hereby decreeing that full faith ought to be given as well in judgment as thereout to the instruments to be from time to time made by you.” 

Furthermore, notarial acts have probative force and are recognised as evidence of a responsible official legal officer in all countries of the world. The Rules of the Supreme Court provide that: 

"A Notarial Act or Instrument may be received in evidence without further proof as duly authenticated in accordance with the requirements of the law unless the contrary is proved." 

Record keeping 

Notaries must keep records of acts for a minimum period of 12 years – and permanently in the case of acts in what is called the “public form”. These are instruments prepared by the notary confirming facts they’ve personally verified. This is distinct from “private form” acts, where the notary attaches a notarial certificate by way of authentication to a document, thus converting it into a notarial act. 

With the passage of time, some transactions can become contentious. For this reason, it’s not uncommon for notarial records to be recalled to establish in law who the signatories were and what the facts surrounding the transaction were. 

Because of the evidentiary status of a notarial act, many parties to important transactions often opt for notarial certification, even when it’s not an absolute requirement. 

Using a notary 

When you work with a notary, they’ll need to know from you: 

• What the nature and background of the document requiring notarisation is; 
• If the document is in a foreign language; 
• If the person executing the document is acting in a personal capacity or as an authorised signatory of a legal entity; 
• Where a legal entity is involved, where it’s incorporated and under what authority you’re acting; and 
• If there have been any requests for the notarised documents to also be legalised for use in a particular overseas jurisdiction.

A notarisation can sometimes be performed at a distance where in-person signing is not required by either the wording of the document or the legal requirements of the destination jurisdiction. Your notary will, however, have to meet you in person beforehand and see valid ID/authorisation documents. 

Where legalisation is required, the notarised documents must also pass through the UK Foreign & Commonwealth Office (FCO) and, in some cases, further processed at the consulate of the destination country. The FCO and some consulates in London will turn a document around the same day, but others may take up to three weeks. All Scrivener Notary firms are well-equipped to undertake the legalisation processes on your behalf if necessary. 

How long does notarisation take? 

It can vary. Some notarisations it can be completed in a day, others can take longer. The main factors affecting timescales are: 

• Availability of evidence supporting your authority to sign; 
• The nature of the document; 
• The jurisdiction involved; 
• Availability of signatories; 
• Translation requirements; and 
• Whether you also need legalisation. 

Notaries understand these variables and know what will be accepted in different jurisdictions. With this in mind they can usually predict timescales accurately. It's sensible to contact your chosen notary as early as possible to avoid any last-minute difficulties. 

A good notary understands the needs of business in terms of timely and workable solutions. They’ll work with you to navigate the potential minefield of delegated authorities and consulates and will help you mitigate or expedite matters while minimising disruption to your organisation. 

Conclusion

Notaries are normally involved in cross-border transactions, helping organisations comply with foreign law. However, because of the probative force of notarial acts, you can also use them where you need the additional business security and record keeping they provide. 

There’s a distinction between a Notary Public and a Scrivener Notary – the latter has proven experience in foreign languages and foreign law. The larger Scrivener Notary firms are also able to attend meetings at short notice, provide translation services and undertake legalisations to tight deadlines. 

Subject to confirmation by a notary, in certain circumstances a notarisation can be performed at a distance. 

Good notaries are used to meeting tight deadlines but, as many factors can affect notarisation/legalisation timescales, it’s best to seek preliminary advice early.