The Second International forum on eNotarization and eApostilles

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The Second International forum on eNotarization
and eApostilles

• The Civil Law Notarys perspective
• Me. Jeffrey Talpis
• Notaire Professor at Law Faculty, University of
  Montréal, Canada
• UINL Delegate to HCCH
• William Kennair
• Scrivener Notary, London, UK
• President, UINL Informatics and Judicial Security
  Commission

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eNotarization and eApostilles

• Common requirements to both paper and
  electronic notarial acts, as identified in Las
  Vegas

• 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-notarization?

• 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

• 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 legalization?
• Authentication
• Element of Trust
• Consular certification
• Chain of certificates
• Apostilles

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eNotarization and eApostilles

• General Conclusions of the 1st International
  Forum in Las Vegas

• The Convention is adaptable to the new
  technologies without the need for formal revision
• Member States are encouraged to continue the
  review and enhance the legal framework for
  allowing the use of electronic signatures and
  electronic documents
• Civil law notarys perspective
• - encourage States to adopt UNCITRAL Model laws
  electronic commerce, electronic signatures and
  guiding principles under these laws, in
  particular the functional equivalent approach,
  media neutrality, integrity and non
  discrimination of electronic signatures or
  legislation based on these laws and principles,
  so as to assure
• Security
• Predictability
• Certainty

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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

• The Pilot Programme
• Private International Law considerations
• Recognition
• Verification
• Probative value
• Enforceability

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eNotarization and eApostilles

• The Pilot Programme
• Two aspects
• - Electronic Register of Apostilles
• - Electronic legalisation of documents

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eNotarization and eApostilles

• The Pilot Programme
• Advantages
• Availability of envisaged software - reading
• - writing
• Application to both paper and electronic
  documents
• Harmonization of approach to legalization
• Mutual recognition
• Hands-on experience

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eNotarization and eApostilles

• The Pilot Programme
• Concerns
• Proprietary software Technology neutral?
• Interoperability mutual recognition of digital
  certificates?
• Issue of Certificates who will do it?

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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?