THE ROLE OF THE NOTARY IN SECURE ELECTRONIC COMMERCE · Professor Peter Zablud, Director of...

THE ROLE OF THE NOTARY IN

SECURE ELECTRONIC

COMMERCE

by

Leslie G. Smith

A thesis submitted in accordance with the regulations for the degree of Master of Information Technology (Research)

Information Security Institute

Faculty of Information Technology

Queensland University of Technology

September 2006

Statement of Original Authorship

“This work contained in this thesis has not been previously submitted for a degree or diploma at any other education institution. To the best of my knowledge and belief, the thesis contains no material previously published or written by any other person except where due reference is made.”

Signed:…………………………………………………………….. Name:……………………………………………………………… Date:……………………………………………………………….

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ABSTRACT

THE ROLE OF THE NOTARY IN SECURE ELECTRONIC COMMERCE

By

Leslie G. Smith

The profession of the notary is at a cross roads. The Notary operates in a world of paper-

based transactions where the use of traditional signatures and seals are mandatory. The

practices and procedures which have evolved over centuries simply cannot be applied

directly in a digital environment.

Establishing a framework for the authentication of computer-based information in today's

commercial environment requires a familiarity with concepts and professional skills from

both the legal and computer security fields. Combining these two disciplines is not an

easy task. Concepts from the information security field often correspond only loosely

with concepts from the legal field, even in situations where the terminology is similar.

This thesis explores the history of the Notary, the fundamental concepts of e-commerce,

the importance of the digital or electronic signature and the role of the emerging “Cyber”

or “Electronic” Notary (E-Notary) in the world of electronic commerce. The research

investigates whether or not the functions of the “Notary Public” can successfully evolve

in the world of E-Commerce, and if so what are the ramifications.

This thesis comprises a survey and critical analysis of proposed architectures and

implementations for “Electronic Notary Services” in an Internet based, electronic

commerce environment. It includes an analysis of relevant historical and legal factors

relevant to these emerging technologies. Given the highly dynamic nature of this topic,

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this thesis does not propose or recommend a single architecture or implementation but

emphasises the need for further research not only into technological factors but also into

the real legal and social needs that affect the role of the E-Notary.

The approach undertaken was an analytical approach to the available current

documentation against input from leading practitioners included practicing Notaries from

Australia, the United States and the Court of Faculties – London,

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TABLE OF CONTENTS

Statement of Original Authorship i

Abstract iii

Table of Contents v

List of figures ix

Acknowledgments xi

Glossary xiii

CHAPTER 1 1

1. OVERVIEW OF THESIS 1 1.1. Appointment of Notaries 4 1.2. Scope of Research 5 1.3. Definition of the Problem 7 1.4. Summary 8

CHAPTER 2 9

2. THE HISTORY OF THE NOTARY 9 2.1. Pre Roman Civilizations 9 2.2. The Roman Era 11 2.3. The Middle Ages 13 2.4. The Reformation 18 2.5 1801 to Present 19

CHAPTER 3 21

3. THE MODERN NOTARY 21 3.1 Appointment of Notaries 22

3.1.1. Australian Notaries 22 3.1.2. England and Wales 23 3.1.3. United States of America 24 3.1.4. Civil Law Notaries 24

3.2. The Notary Seal 26 3.3 The Role of The Notary Public 27 3.4. The Apostille Convention 29 3.5 Elements of the Notarial Act 31

3.5.1. The Notarial Act – Private Form 32 3.5.2. The Notarial Act – Public Form 33 3.5.3. Foreign Language Documents 35

3.6. The Notarial Protocol 35 3.7. Conclusion 36

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CHAPTER 4 37

4 THE ELECTRONIC NOTARY – A CRITIQUE 37 4.1 Electronic Document Notarization 37

4.1.1. TEDIS Group 37 4.1.2. American Bar Association 38 4.1.3. The UK CyberNotary Association 39 4.1.4. HCCH – International Forum of e-Notarization and e-Apostilles 40

4.2 Conclusion 42

CHAPTER 5 45

5. ELECTRONIC NOTARY – NOTARIAL PRACTICE 45 5.1. Introduction 45 5.2. e – Notarization and e – Apostilles 46 5.3. Technology vs Tradition 47

5.3.1. The Notarial Seal 47 5.3.2. Notarial Protocol or Journal of Notarial Acts 50

5.4. Conclusion 50

CHAPTER 6 53

6. ELECTRONIC NOTARY – TECHNOLOGICAL ISSUES 53 6.1. Introduction 53 6.2. IETF - Long Term Archive and Notary Services (LTANS) Working Group 55 6.3. PKI and Certificate Revocation Lists 58 6.4. Long Term Archiving of Notarized Documents and Evidence Record Syntaxes 59 6.5 The Use of Cryptography in Long Term Archives 63 6.6. The Austrian Chamber of Notaries and Siemens CyberDOC 64 6.7. Conclusion 65

CHAPTER 7 67

7. THE ELECTRONIC NOTARY IN POLICY AND LAW 67 7.1. Introduction 67 7.2. The Legislative Position in Australia and New Zealand 67 7.3. The United States 68 7.4. England and Wales 68 7.5. Legislation 70

7.5.1. Electronic Transaction Act (1999) 70 7.5.2. Uniform Electronic Transaction Act (1999) 70 7.5.3. United States Electronic Signatures and National Commerce Act 72

7.6. Conclusion 72

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CHAPTER 8 75

8. CONCLUSIONS AND FUTURE RESEARCH 75 8.1. Conclusion 75

APPENDIX A 83

APPENDIX B 05 1

1Books and Readings 27

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List of figures Number Page Figure 1 - Example of a 13th Century Notarized Document . 17 Figure 2 – Seal of a Practicing Notary Public 27 Figure 3 - HCCH Apostille Certificate - http://hcch.e-vision.nl/upload/apostille.pdg cited 22 October 2004 30 Figure 4 - HCCH Apostille Certificate http//hcch.e-vision.nl cited 22 October 2004 30

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Acknowledgments

This research could have not been possible without the assistance I received from many

people. I would therefore like to thank the following:

Mr Ken Rose – (Deceased) Notary Public, who took time out to introduce me to the world

of the Australian notary.

Professor Peter Zablud, Director of Notarial Studies, assessor Notarial and Professor

Phillip Hamilton, Associate director, Notarial Studies Graduate Diploma in Notarial

Practice Practice/Theory, Graduate Diploma in Notarial Practice - Sir Zelman Cowen

Centre Victoria University. These gentlemen provided the opportunity to attend a

weekend workshop where I gained great insight into what it means to be a notary public

in Australia and in particular to Peter who took time out to take my calls. Peter made

himself available to take my calls and we spent many hours discussing the technological

issues as well as legal issues associated with an “electronic notary service”.

Professors Lance Hoffman and Sead Muftic at the Cyber Security Policy and Research

Institute, (CSPRI) George Washington University, Mr Randy Sabett Attorney at Law –

Vice Chair of American Bar Association Information Security Committee.

Prof Gene Spafford and his staff at the Centre for Education and Research in Information

Assurance and Security (CERIAS) at Purdue University Lafayette Indiana who all

provided valuable input into my research

To Mr Richard J. Hansberger, Director of eNotarization National Notary Association of

America, and Mr Arshad Noor of StrongAuth, Inc, Members of Ltrans group who

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provided a valuable insight to the working s and the problems faced by Notaries in the

United States.

To staff members at the office of Master of the Faculties of the Archbishop of Canterbury

Westminster, for the assistance and insight into the workings of the office they provided

during my visit to London.

Finally but not least to the two gentlemen who must have surely been frustrated with the

sometimes slow progress of my research , due to my involvement in other projects, but

who never the less provided the inspiration to keep going. My special thanks to my two

supervisors Professor William Caelli and Dr Adrian McCullagh.

xii

Glossary “Civil law” has at least three meanings. It may connote an entire legal system, or either of

two different bodies of law within a legal system:

1. A legal system derived from Roman law and commonly used in Europe; here the

contrast is common law;

2. The set of rules governing relations between persons (either humans or legal

personalities such as corporations); here the contrast is public law, especially

criminal law;

3. Secular law, as opposed to canon law.

“Common-law” - The law of many countries, especially those with a history as English

colonies. It is notable for the inclusion of extensive non-statutory law reflecting a

consensus of centuries of judgements by working jurists.

“Statutory law” is written law (as opposed to oral or customary law) set down by a

legislature or other governing authority such as the executive branch of government in

response to a perceived need to clarify the functioning of government, improve civil

order, answer a public need, to codify existing law, or for an individual or company to

obtain special treatment

“Notary” a Notary is a “Public” officer whose function it is to:

• administer oaths; to attest and certify, by his hand and official seal, certain

classes of documents, in order to give them credit and authenticity in foreign

jurisdictions;

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• to take acknowledgments of deeds and other conveyances, and certify the same;

and

• to perform nominated official acts, chiefly in commercial matters, such as the

protesting of notes and bills, the noting of foreign drafts, and marine protests in

cases of loss or damage. Black’s Law Dictionary1,

“Notarial act” includes any act, matter, or thing, which in Queensland or elsewhere a

notary public can attest or verify or otherwise do by or under any Act of Parliament,

custom, or otherwise for the purpose of being used in Queensland. In this way they act as

a “witness” in the act.

“Notarization,” the act of a notary in authenticating a document or verifying it under

oath. Webster’s Third New International Dictionary of the English Language

Unabridged (G. & C. Merriam Co., 1976),

“Witness” is someone who has first-hand knowledge about a crime or dramatic event

through their senses (e.g. seeing or hearing) and can certify to its happening. A witness

who has seen the event at first-hand is known as an “eyewitness”. Witnesses are often

called before a court of law to testify in trials. Eyewitness testimony is often presumed

to be better than circumstantial evidence.

1 Kip v. People’s Bank & Trust Co., 110 N.J.L. 178, 164 A. 253, 254 (1933).

xiv

C H A P T E R 1

1. OVERVIEW OF THESIS The term “Electronic Notary” is a relatively new term in commerce and first appears to

have been coined by the French delegation to the TEDIS2 legal Workshop at the

European Union’s 1989 EDI Conference in Brussels, where the concept of such an

activity3 was introduced. This conference proposed that various industry associations and

related peak bodies could act as an “electronic notary” to provide an independent record

of electronic transactions between parties, i.e., when company A electronically transmits

trade documents to company B, and vice versa.

In the United States of America in August 1994, the Information Security Committee of

the American Bar Association similarly seems to have taken the first steps in defining the

term “CyberNotary”. The committee envisaged that this proposed new legal professional

would be similar to that of a “notary public” but in the case of the Cyber Notary his/her

function would involve electronic documents as opposed to physical documents. This

would be an office, which would be readily identifiable and recognized in every country

throughout the world: i.e., as a legal professional who has been placed in a position of a

heightened level of trust. They would have the responsibility to undertake certain types of

legal transactions than that of the public officer generally referred to in the United States

as a notary.4 5 The CyberNotary would thus be a lawyer who is able to use advanced

2 TEDIS (trade electronics DATA inter-CHANGE system) was a project for the exchange of commercial data, initiated by the European union.

3 Submission from the Management Committee of the XML & E-commerce Special Interest Group [XZIG] of the Open Interchange Consortium [OIC]

Electronic Business Association to The Chair - Australian Senate Inquiry - UNITED STATES XZIG FREE TRADE AGREEMENT OIC dated the

20 Apr 2004 www.aph.gov.au/Senate/committee/ freetrade_ctte/submissions/sub391.pdf cited 29 June 2005

4 The CyberNotary: Public Key Registration and Certification and Authentication of International Legal Transactions by T.S. Barassi, Esq – Manager,

CyberNotary Project United States Council for International Business.

5 “A Notary public in the United States is a public offer who performs certain ministerial public functions and is not an employee of the state. Notary

public are not required to have any particular educational or practical training. While the notary public’s status as a private citizen performing a public

function is similar to that of the Latin notary, the former cannot in any sense be called a legal professional, and any comparison to the latter would be

misleading,” Counsel for the Situation: The Latin Notary, A Historical and Comparative Model. Professor Pedro A Malavet – Hastings International

and Comparative Law Review Vol 19 No 3 1996.

1

technology to undertake certain activity that corresponds with similar activity that a

notary public undertakes in the paper based environment.6

The committee based its decision on the premise that the success of electronic commerce

ultimately rested on the trust which transacting parties placed in the security of the

transmission, the integrity of the content of their commission, and their confidence that

these communications would be granted adequate recognition to ensure their

enforceability on any domestic or foreign jurisdiction.7 Not only would the CyberNotary

Project rectify the lack of security in international legal transactions originating in the

U.S., it was also envisaged that this new role would guarantee that the acts of US Notaries

would be given full force and effect in foreign jurisdictions which had previously viewed

U.S. notarizations with considerable scepticism.8

In order to address security problems associated with the insecurity of internet-based

networks, the US team saw the use of asymmetric or public key cryptography9 as a

possible solution. They saw asymmetric cryptography forming the underlying technology

used to secure electronic messages and authenticate the identity of all parties involved in

such electronic transactions. The provision of “digital signatures” within a Public Key

Infrastructure (PKI) was seen as providing distinct advantages over symmetric or single

key cryptography. However, it should be noted that in principle PKI offers no complete

6 The Spectre of the CyberNotary - Science Fiction or New Legal Specialty? By Joseph Kornowski Joseph Kornowski associate executive director and

general counsel for the Los Angeles County Bar Association

7 Brookes Notary N.P. Ready 12th edit A5-01 pp 627



9 An asymmetric cryptography system is one in which the enciphering and deciphering key are different and in which it is computationally infeasible to

calculate one from the other, give the enciphering algorithm. In this type of system the deciphering key is made public but the deciphering key is kept

secret. Asymmetric or public key cryptography hasa number of advantages over symmetric ciphers. In the case of electronic messages both the

sender and the receiver each possess to keys, a private key which is never disclosed and a public key which is available to anyone. This allows an

individual to publish a single enciphering key in a public directory which potential senders can access encipher their message using the recipient’s

public key. Other senders would not be able to decipher messages sent using the same key because the deciphering key is kept secret. Whilst the

secrecy of the public key is not essential, maintaining the integrity of the key in the public directory must be guaranteed at all times to prevent an

attacker replacing the public key with his own, thereby being in a position to intercept sensitive information destined for someone else. Caelli,

Longley & Shain – Information Security for Managers Stockton Press 1989

2

security solution related to the authenticity/integrity of an actual document or its contents

from an “end-to-end” perspective. This arises since in a normal, commodity-level

personal computer (PC) the contents of a document displayed on the associated screen

may not be the same as the corresponding data in the memory of the PC which data are

then used for the PKI- based, digital signing process. This is commonly referred to as the

“WYSWYS”10 problem. It is interesting to note that the nature, structure, form and any

other factors relating to the document to be notarized do not appear to be relevant.

When discussing the role of the Notary Public in electronic transactions it is important to

take into account a number of essential factors, which combine to form what is commonly

referred to as “the traditional notarial act”. The most important of these factors is that the

person seeking the services of a Notary must appear in person before the Notary. This

allows the Notary not only to sufficiently identify the client, but also to make observations

and judgments as to the demeanour of this person. The Notary must positively “identify”

the person beyond a reasonable doubt which can be achieved either through personal

knowledge of the individual’s identity, the vouching of the person through a credible

witness, and or the use of reliable identification documents.

The Notary must be sure in his or her own judgment that the client was not under

“duress” or “direct physical threat” at the hands of a third party and that the client was

“fully conscious” and “aware” of the proceedings at the time of the transaction.

Without this personal appearance, the other steps of the notarial process cannot be

effectively implemented. In summary, as a trusted, impartial officer commissioned by a

State or similar governmental entity, the Notary must screen signers not only for identity,

but also for awareness and lack of duress. This is an important aspect, which may be

10 W.C. Caelli – ‘What You See What You Sign”

3

insurmountable for the Cyber Notary to overcome, if there is to be a similar requirement

placed upon Cyber Notary.

1.1. Appointment of Notaries

Notaries have been an accepted part of the legal profession as well as the world of

commerce since ancient Roman times. Generally speaking, notaries may be described as

officers of the law whose public office is to draw, attest or certify, under their official seal,

various documents, both public and private, for use anywhere in the world. These may

consist of deeds and other document forms, including wills, or other testamentary

documents, conveyances of real and personal property and powers of attorney. Notaries

are responsible for authenticating documents under their signature and personal seal in

such a manner as to render them acceptable to the judicial or public authorities in the

country where they are to be used.

Whilst there has never been an attempt to codify the precise nature of the notary’s office,

the role is not defined by any statute or other instrument. Halsbury’s Laws of England

(4th ed., re-issue). Vol. 33, para 701 states for the purposes of the law in the UK:

“A notary public is a legal officer appointed by the Court of Faculties, whose

general role it is, amongst other matters, to draw, attest or certify, under an

official seal, documents which are intended for use in other jurisdictions.”

This is in marked contrast to civil law jurisdictions, i.e. those countries whose legal

systems are derived from Roman law, including continental Europe and Latin America.

On the whole, the role of the notary can be gleaned from custom ie, the law merchant11,

11 Law, merchant - lex mercatoria. A system of customs acknowledged and taken notice of by all commercial nations; and those customs constitute a

part of the general law of the land; and being a part of that law their existence cannot be proved by witnesses, but the judges are bound to take notice

of them ex officio.

4

case law and statutes which contain specific provisions relating to the function and

operation of the notary.

1.2. Scope of Research

As information and communications technologies advance the growth of global

electronic commerce, the essential issue in this modern environment is the question of

the future role and function of the notarial profession worldwide. The questions to be

answered by governments, the legal fraternity and business communities are:

“Do notaries have a role in an electronic technology driven commerce

environment?”

and if so

“Where do they fit within this environment?”

The absence of a widely available trusted, or even trustworthy, systems for securing

national and international electronic transactions is seen by many as a major

impediment to the general acceptance of electronic commerce as a reliable and

dependable means of conducting global commerce. With increasing globalisation and

the increased migration of commerce from the physical/paper environment to the

electronic environment, there appears to be an argument to maintain, if not increase,

the notarial profession’s participation and to provide services, which at least emulate

the service that has been provided in the “paper world”.

The rapid growth of electronic commerce worldwide raises a number of questions

about the future of the notarial profession itself on a worldwide basis. One response,

seen particularly in the United States, has been the introduction of the role and term

"CyberNotary". The role of the person or position covered under this definition

would be to authenticate electronic documents by electronic means, e.g., through the

5

commercial use of the Internet, where documents and their authentication parameters

could be reproduced and verified instantaneously, anywhere in the world.

In the introduction to his paper entitled “CyberNotary: Public Key Registration and

Certification and Authentication of International Legal Transactions”, Theodore

Barassi12states:

“The advent of electronic commerce in international trade has exacerbated a

longstanding impediment to the enforceability of legal acts executed in the

United States for use in non-U.S. jurisdictions. Fundamental differences

between countries in the procedural and content requirements for many types

of international transactions, from powers of attorney to transfers of

corporate shares, have long resulted in numerous U.S.- executed documents

being rejected by legal and recording authorities overseas.”

This problem is not unique to the United States. It is a global problem. All countries

of the world are facing the problem now as they adopt e-commerce technology in all

its forms, including sensitive “electronic government” or “e-government” schemes.

The aim of this research is to investigate whether or not the functions of the “Notary

Public” can successfully evolve so as to handle the requirements of the fast emerging

world of global E-Commerce and, if this is possible, to investigate what ramifications

may exist in such adaptation, technically, legally and from a business perspective. It

includes an analysis of historical and legal factors relevant to these emerging

technologies as well as a survey and critical analysis of proposed architectures and

implementations for “Electronic Notary Services” in an Internet based, electronic

commerce environment.

12 Theodore Barassi Manager, CyberNotary Project – United States Council for International Business – American Bar Association

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It should be clearly understood that this thesis relates to the potential introduction of a

modern electronic form of the traditional notary or, more appropriately, an electronic

form of the services provided by that role in society. This is a much narrower and

more specific form of what generally is called, in general information security

contexts, a “trusted third party.”

1.3. Definition of the Problem

The problem to be addressed is to identify exactly what computer, data network,

cryptographic, management and allied procedures and processes are required to

achieve this goal. Moreover, any scheme that is designed and implemented must

provide its users with systems which are truly acceptable at law in the case of dispute,

both nationally and even internationally. It does not propose or recommend a single

architecture or implementation but will emphasize the need for further research not

only into technological factors but into real legal and social/business needs.

The notarial profession must be prepared to meet the demands brought about by

advances in technology. It is also important to note that the notary's responsibility is to

the validation of the transaction itself, rather than to the client. If in the future, the

notarization of electronic documents becomes technically possible and is allowed by

law, the question of the definition of the term “original document” needs to be

resolved.

For example, if three “original documents” are to be created does this mean that three

separate files must exist within the computer system or is it sufficient to have one

master file stored on some storage medium, usually a “hard disk”, which is then

printed three times and subject to separate manually inserted signatures onto actual

paper copies? Moreover, if digital signatures are to be used for authentication and

notarization purposes, should each of the individual files then be separately, digitally

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signed or is some other process possible? In turn, would a possible “digital notary”

apply an approved notarization process to each of the files?

1.4. Summary

If in the future, the electronic notarization of electronic documents is made possible

and is permitted by law, the question of the definition of the term “original document”

needs to be examined. In particular, depending upon that formal definition, which

must be acceptable at law, the question of feasible and reasonable implementation at

the technical level must be resolved. This has the added concern that such a technical

implementation structure must be capable of working in a reliable, safe and secure

manner in commodity level information and communications products and systems,

including those normally used by parties to associated business agreements and the

like as well as by any emergent “electronic” or “cyber” notary.

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C H A P T E R 2 2. THE HISTORY OF THE NOTARY

In order to understand the possible role that a notary public may have in the electronic

commerce or cyber–environment, it is imperative that there is a clear understanding of

what role a modern day notary currently possesses, a role that has evolved over two

millennia in modern Western societies. This chapter discusses the evolution of the

ancient notary, and his role in society, to the current esteemed position of the modern

notary.

There are different views regarding the historical ancestry of the modern notary. In his

paper “The Notary A Short History” Tom Halliwell13 writes that notaries originated as

scribes in ancient Rome. These scribes, or “scibae” in Latin, were literate clerks who

took notes or minutes of important events and decisions and who also made copies of

both public and private documents. This proposition is agreed with by Noel Cox,14 in his

paper “The Notary Public – The Third Arm of the Legal Profession”.

However, the concept of a specialist dedicated to writing documents is as old as the art

and practice of writing itself as references to exalted position of scribes or note takers can

be found in most ancient cultures.

2.1. Pre Roman Civilizations

The Hammurabi's Code15, found on ancient tablets dated to at least two millennia

B.C., makes reference to some of the oldest written contracts on record. These

records were contracts documented by Babylonian judicial scribes, in the presence of

witnesses, as judgments of the court of the day. They had public status and probative

13 Tom Halliwell Notary Public and Solicitor – The Notary – A Short History http://www.learnedcounsel.com/ cited

14 Noel Cox LLM (Hons) MA PhD, GradDipTertTchg, AdvCertHeraldySociety – CertTertTchg, FRHistS, FFASL FBS

http://www.geocities.com/noelcox/ cited

15 King of Babylonia, first Babylonian dynasty reign about 1792-1750 BC.

9

value and their function often related to the transfer of real or personal property

among individuals.16

We find “scribae”, royal scribes, law scribes, popular scribes, and state scribes, all

existed amongst the Hebrews of the Old Testament. With the exception of the

popular scribes all had the authority, which emanated from their employer, to

authenticate documents, i.e.

• the royal scribe authenticated, on behalf of the King, his acts and resolutions;

• the state scribe was the secretary to the crown and to the courts of justice,

whilst

• the law scribes, who were interpreters of the law, also had a religious function

which gave them a priest-like status.

Whilst the royal, state, and law scribes were what would now be called “state

employees”, their functions related exclusively to state business. It was the lower-

level popular scribe who performed services for individuals involved in private

transactions. It is here that the development of ministerial functions relating to legal

documents take shape.17

In classical Greece, officials known as “singraphos” and “apographos” are

mentioned in the writings of Aristotle originating around 360 B.C. They were

described as "public officials charged with drafting the citizens' contracts" and as

such said to be predecessors of the modern notary. 18

16 Pedro A. Malavet [FNa] Counsel for the Situation: The Latin Notary, a Historical and Comparative Model, 19 Hastings Int'l. and Comparative L. Rev.

389-488 (1996).


389-488 (1996).


389-488 (1996).

10

Throughout pre Roman history there are many recorded instances of public officials

with the power to certify the written acts of the State with an official seal. Whilst

there are references to scribes who drafted legal documents for private persons there

appears to be no identifiable single professional who possessed both the power of the

State to authenticate private transactions and the responsibility to act as legal advisor

to private parties.

Whilst some commentators may wish to suggest that certain categories of ancient

scribes were the complete predecessors of the modern notary there is no clear

evidence to suggest that such a comparison to the modern notary is completely

accurate.19

2.2. The Roman Era

As mentioned above, the Roman scribes or “scribae” were the literate clerks who took

notes or minutes of important events and decisions and made copies of both public

and private documents for the Roman judges or “praetors” charged with resolving

civil lawsuits. They were prominent, but impartial, public officials who were

entrusted with the duty of providing legal assistance to citizens, authenticating

documents and keeping official archives. Their work appeared in court records and as

such had public document status.20

Around 63 BC a new form of writing, which took its name from the Roman Consul

Cicero's secretary M Tullius Tiro, was developed. This form became known as “notae

tironinae”, a forerunner of today’s short hand notation. An individual who adopted

this new method of writing became known as a “notarius”. These people were


389-488 (1996).


389-488 (1996).

11

synonymous with the registrars attached to the courts of provincial governors, to the

secretaries of emperors, and to the highest class of officials in the Roman Privy

Council and the Imperial Chancery.21

Scribes known as “Tabellions” were regularly found in the Roman market place.

They were private professionals who wrote and kept wills and other legal documents.

Their name was derived from the wax covered “tabulae” (Latin) or tablets that they

used for writing purposes. Over time, their importance and value as official record

keepers grew and their profession became more and more important as societies

formalized rules and decisions. As time progressed, the majority of their work

became concerned with the formal recording of private law matters, such as deeds,

wills, transfers of property, and the like. The state strictly regulated the “Tabellions”

to ensure the honesty of their work.22

Not only did the Tabellions draft public instruments called “Instrumenta Publicae

Confecta”, which not only acquired public and authentic status upon judicial

intervention, known as the “insinuation” they also drafted legal documents on behalf

of private parties. Because they also provided legal advice to the various parties, they

had to follow strict rules imposed by the “corpus juris” in drafting documents. They

can, therefore, rightly be called one of the direct predecessors of the modern notary.

The most important factor that supports this conclusion is the distinction between the

“Tabellio” and the general legal profession, the jurisconsultus or jurisperitus. While

the jurists "advised their clients about legal problems, the Tabelliones assisted them in

writing legal documents and applications to be addressed to the emperor or higher

officials" and thus could be considered a liberal profession within a system of

21 N.P Ready Brooke's Notary 12th ed (2002 0 1- o2 Pp1 – 3


389-488 (1996).

12

specialized professionals. Still missing, however, was the public power to

authenticate.23

2.3. The Middle Ages

Although the fall of Emperor Romulus Augustulus in 476 A.D. marked the beginning

of the end of the Western Roman Empire, it did not see the demise of Roman law.

The many nomadic tribes who populated the various territories, which had made up

the old Western empire, found it convenient to adopt and retain many of the old

roman institutions, laws and customs. Former Roman provinces were divided into

“conventus” or districts, principle cities became the seats of courts or “assizes” where

justice was administered in a manner similar to that, which had been administered by

the Roman Governors.24

Roman law together with its institutions flourished in the Eastern Roman or Byzantine

Empire where Justinian’s Code, Digest and Institutes of 529 to 534 A.D., originated.

The “Tabelliones”, or officials known as “Tabublarii”, remained active throughout the

Eastern Empire. The “Tabublarii” or “Tabelliones” often employed scribes,

individually known by their generic term of “Notarius”, in their establishments.25

The rise of the Franks26 saw the emergence of “curia regis” or King’s Court over

which the “Count Palatine” or Lord of the Court presided. In addition, being a court

of appeal, the King’s Court was where sales and transactions of higher importance 23 Pedro A. Malavet [FNa] Counsel for the Situation: The Latin Notary, a Historical and Comparative Model, 19 Hastings Int'l. and Comparative L. Rev.

389-488 (1996).

24 Tom Halliwell (2000). The Notary - A short History, Tom Halliwell B.A Dip. Mus


389-488 (1996).

26 The Franks or the Frankish people were one of several west Germanic federations. The confederation was formed out of Germanic tribes: Salians,

Sugambri, Chamavi, Tencteri, Chattuarii, Bructeri, Usipetes, Ampsivarii, Chatti. They entered the late Roman Empire from present central Germany

and settled in northern Gaul where they were accepted as a foederati and established a lasting realm (sometimes referred to as Francia) in an area that

covers most of modern-day France and the western regions of Germany (Franconia, Rhineland, Hesse), forming the historic kernel of both these two

modern countries. The conversion to Christianity of the pagan Frankish king Clovis was a crucial event in the history of Europe. foederati - the

Roman practice of subsidizing barbarian tribes — which included the Attacotti, Franks, Vandals, Alans and, best known, the Visigoths — in exchange

for providing soldiers to fight in the Roman armies. http://en.wikipedia.org/wiki/Franks cited 19 January 2006

13

were concluded. In the event a deed, document or title to land was lost or destroyed

the owner, could, on petition to the court, be issued with a “General Confirmation” of

ownership on behalf of the King. Notaries attached to these courts were known as

“Cancellarii” or Palatine Notaries.

This role was usually filled by members of the Christian clergy whose role it was to

record all judicial proceedings. Their duties included the preparation and

endorsement of deeds and other legal documents which would later be sealed, in the

presence of the local Count, with his official seal and thereby rendered a public and

authenticated act.27

Under the Holy Roman Emperor, Charlemagne, itinerant justices or royal

commissioners called “MISSA REGII” were instituted to hold the Assizes, or regional

court hearings, four times a year. In AD 803 these commissioners were directed by

the Emperor to appoint notaries to accompany them on their circuits and to see that all

bishops, abbots and counts were provided with notaries who would be known as

Royal Notaries.28

During the 12th Century A.D., the German Emperors, claiming to be the successors of

the Roman Emperor Augustus, laid claim to the privileges of the Roman Emperors.

They granted similar rights to persons of high office and municipal authorities. Those

appointed in this manner became known as “notarii per auctonitate imperiali” or

Imperial Notaries or where appointed by the Count Palatine “notarii sacri palatii” or

Palatine Notaries. At the same time the Vatican, under authority from the Pope, who

had always appointed notaries within its own territories, began to appoint Notaries

27 N.P Ready Brooke's Notary 12th ed (2002 0 1- o2 Pp1 – 4

28 N.P Ready Brooke's Notary 12th ed (2002 0 1- o4 Pp 4

14

outside of the church’s territories. Notaries appointed in this manner became known

as, “notarii apostolicae sedis, and sacri laternanensis palatii”.29

In what became Italy, complete authenticity of notarial acts, or documents bearing an

official seal, was being claimed under Roman law. The act became known as

“publica - the act of certifying the truth of the fact therein contained.” Ecclesiastical

courts authorised the practice and eventually Canon law conceded the character of

“instructa publica” to all notarised documents. Similar rules of practice existed under

regional German, as it became, Salic30 and Lombardy law. However, in these

jurisdictions a person producing a document or deed prepared by a notary was

required to attest, on oath, the truth of the facts expressed in the document or deed.

During this period, jurists at the University of Bologna or School of Bologna,

introduced the concept of “publica fides” or “authenticity” of the notarial act. This

authority only extended to matters of which the notary had direct knowledge through

personal intervention in the judicial act. The acceptance of the notary to make a

“faithful record” of such matters was ensured by the knowledge that the notary had

taken a solemn oath at the time of his appointment.31

In 1167, Pope Alexander III, in a Decretal32 “meminimus” to Bishop Roger of

Worcester, addressed a number of points of law on the proof of instruments. He

stated: “authentic writings, if the subscribing witnesses have died (if not drawn up by 29 Tom Halliwell (2000). The Notary - A short History, Tom Halliwell B.A Dip. Mus

30 The Salic Law (Lex Salica) is a code of law written around the time of Clovis (476-96) for the Salian Franks, in Latin mixed with Germanic words. It

deals mainly with monetary compensations (wehrgeld) and also with civil law with respect to men and land. Clause 6 in title 59, which deals with

inheritance rules for allodial lands (i.e. family lands not held in benefice) specifies that in "concerning salic lands (terra Salica) no portion or

inheritance is for a woman but all the land belongs to members of the male sex who are brothers." A capitulary of Chilperic, ca. 575, expands this by

admitting inheritance by a daughter in the absence of sons: "id a man had neighbours but after his death sons and daughters remained, as long as there

were sons they should have the land just as the Salic Law provides. And if the sons are already dead then a daughter may receive the land just as the

sons would have done had they lived." The monarchy is nowhere mentioned. The Salic Law was reformulated under Charlemagne and still applied in

the 9th century, but it slowly disappeared as it became incorporated into local common laws. By the 14th century it was completely forgotten.

http://www.heraldica.org/topics/france/salic.htm cited 19 January 2006

31 N.P. Ready Brookes Notary 12Ed 1-06 P 5 - 6

32 In medieval Europe, a papal ruling on a disputed point, sent to a bishop or abbot in reply to a request or appeal.

15

public hand, in such manner as they appear to be public or not bearing an authentic

seal by which they may be proved) do not appear to us to carry any weight of

certainty.” 33 Canon Law provided the basis for the doctrines formulated by the

School of Bologna that documents bearing authentic seals enjoyed full probative

force.34

Between the 13th and 16th centuries many European states enacted legislation in

relation to notaries. In what is today modern Italy, individual city states introduced

legislation to regulate notaries. In France legislation such as “Charlemagne’s

Capitularies” and the notarial laws of the city of Paris existed. Portugal, under

Alfonso II, enacted laws in relation to notaries. A similar situation also existed in

Spain as Aragon and Valencia created Notary colleges and introduced legislation

(1238) and in Catalonia there were the Courts of Pedro III (1131) and Alfonzo III

(1333) whilst in Castille notary colleges began to appear.35

In England common law developed independently of the rest of Europe. Prior to

1279, the profession of Notary was virtually unknown in Britain. In that year Pope

Nicholas III, empowered the Archbishop of Canterbury to appoint Imperial Notaries

which led to the adoption of a system of authenticating contracts and conveyances,

which was already in use in France and other parts of Europe. However, in his book

36 “Notaries Public in England in the 13th and 14th Centuries” C.R. Cheney reports

that:


34 William Durand, French canon jurist 1237 – 1296, in his “SPECULUM” of approximately 1271 stated: “A notary public appointed by the Emperor

or the Pope or by someone to whom they have granted this special privilege, may perform his office and draw up instruments anywhere, even in

France or England or Spain, not only in lands specially subject to the Emperor or the Pope”.

35 Pedro A. Malavet [FNa] Counsel for the Situation: The Latin Notary, a Historical and Comparative Model, 19 Hastings Int'l. and Comparative L.

36 C.R. Cheney. Notaries Public in England in the 13 and 14th Centuries. (1972 Oxford University Press) P.6.

16

“By the end of the 13th century even a villain could have a seal and that the very

proliferation of seals gave rise to the problems of identification and forgery”.

Cheney also noted that although Christian Missions brought about a degree of

Romanisation in Britain during this period, it was customary law which prevailed.

The execution of contracts and judicial sentences did not depend on written records.

They simply gave additional solemnity to transactions of which the community was

normally the guarantor. During this period, notaries notarized their documents with

their individual notarial marks37, which were personalised, hand drawn symbols by

individual notaries.

Figure 1 - Example of a 13th Century Notarized Document 38.

In 1320, the role of Notary in England was placed in jeopardy due to an ongoing

dispute between King Edward II and the papacy which resulted in all foreign notaries

being banned from practicing in Edward’s realms. Edward issued two writs to the

Archbishop of Canterbury and the Sheriffs of London in which he forbade Imperial

Notaries from exercising their office and denied credit to all their instruments. 37 A document drawn up by a notary has its own giveaway item of layout and design in the form of the often elaborate notary's mark which usually

adorns the lower left of the page. Beside it is written the notary's authenticating statement. There is no seal, as the notary's mark is the validating

instrument.

38 Notarial document of 1281, comprising an appeal to the Holy See by the Prior of Holy Trinity, York, over the appointment of a priest to the church of

St Helen, Fishergate. From the private collection of Rob Schäfer. (Photograph © Rob Schäfer

17

http://medievalwriting.50megs.com/glossary.htm#notary

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This figure is not available online. Please consult the hardcopy thesis available from the QUT Library

Despite the ongoing disputes between Edward and the papacy, notaries continued to

have an important role in medieval England. There are numerous mentions of them

and their role in the official records throughout the 13th and 14th centuries. However,

they were never to attain the high position in England as their counterparts did

throughout Europe.39

2.4. The Reformation

Henry VIII’s split from Rome saw him assume the power of delegation previously

held by the Pope and the power to appoint notaries was transferred to the English

crown. This led to the Ecclesiastical Licences Act of 1533, otherwise known as

PETERS PENCE AND DISPENSATIONS, which transferred legal authority

concerning the affairs of the Protestant Church in England from Rome to Canterbury

where it remains to this day. A Court of Faculties, with the authority to appoint

notaries, was established under the auspices of the Archbishop of Canterbury, again

an authority which remains in force to present times. From 1533 to 1801 English

notaries were appointed by Canterbury without foreign or Parliamentary

intervention.40 41

Although it is universally recognised that the role of the modern day Notary Public

evolved from Roman civil law, it was, however, influenced by the “Codes

Napoleon”42 and the “Law Merchant” or “lex mercatoria”43 which was especially



41 N.P. Ready Brookes Notary 12Ed 1-07 P 7 - 8

42 The Code Napoleon was a compromise between the customary law, basically Germanic, of the northern provinces of France, and the essentially

Roman law of the southern and eastern regions of the country. The code corresponds to contributions made by the Byzantine emperor Justinian I to

the Roman Corpus Juris Civilis, or body of Civil Law. As a result of the Napoleonic conquests, the code was introduced into a number of European

countries, notably Belgium, where it is still in force. It also became the model for the civil codes of Québec Province, Canada, the Netherlands, Italy,

Spain, some Latin American republics, and the state of Louisiana.

43 “Law Merchant’ or lex mercatoria”. A system of customs acknowledged and taken notice of by all commercial nations. Those customs constitute a

part of the general law of the land and, being part of that law, their existence cannot be proved by witnesses. However, the judges are bound to take

notice of the “ex officio”.

18

influential in England. In this regard, modern commercial law could be seen as

growing from the custom and usages of the merchants, i.e. the “Law Merchant”44.

Whilst the common law world has made no attempt to codify in detail the precise

nature of the office of notary public, in civil law countries the role of the notary public

is governed by special legislation. This includes continental Europe, Latin America,

and other parts of the world where national legal systems are based on principles

derived from Roman law. The functions of notaries in this regard may however, be

gleaned from a number of sources. The chief of these is custom, principally the “Law

Merchant”, together with, to a lesser extent, case law that provides guidance.

Functions may also be determined by those statutes which deal specifically with

aspects of the notary’s work.

2.5 1801 to Present

In 1801, the English Parliament passed the Public Notaries Act of 1801 which became

the first attempt by Parliament to regulate the notarial profession. This resulted in the

first statutory regulation of the Notarial profession and confirmed that it was the

Master of Faculties of the Court of The Archbishop of Canterbury who should appoint

and control notaries, whilst in the City of London exclusive right was given to the

Scrivener's Company to administer the profession within the City.45 The Courts and

Legal Services Act of 1990 (UK) indirectly introduced more stringent qualifications

and abolished the distinction between District and General Notaries46. However, two

kinds of notary continue to practise in England and Wales today, “Scrivener Notaries”

to be found in London (generally with particular language skills and knowledge of

44 Jowlett’s Dictionary of English Law (2nd ed., 1977), p.1069 defines the law merchant as: “that part of the law of England which governs mercantile

transactions. It is founded upon the general custom of merchants of all nations, which, though different from the general rules of the common law, has

been gradually engrafted into it, and made to form part of it.”

45 The application of this English Act to Australia, with the exception of those provisions which applied to Scrivener Notaries, was conferred under the

terms of the “Colonial Laws of Validity Act” 1865 and again in 1901 under the Australian Constitution.

46 Section 57 of the Courts and Legal Services Act 1990.

19

foreign laws) and “General Notaries” in the remainder of the Country who assist

members of the public with their transactions involving the law of other jurisdictions.

Since their foundation in 1373 the Scrivener notaries have belonged to one of the

Livery Companies47 of the City of London and were referred to as the “Mysterie of

Writers of the Court Letter”. Scriveners were originally public scribes exercising their

calling as letter writers and expert copyists. Scrivener notaries are only appointed

after five years of being “articled” 48 to a practising notary. Scrivener notaries must

be fluent in one or two foreign languages and be familiar with the principles and

practice of foreign law, as appropriate.

As previously stated, Australian and English notaries have never attained the same

prominence in their respective legal systems as their counterparts in Europe, or other

civil law jurisdictions, have. It could be argued that their importance resides not in the

individual functions which they perform within the legal system but rather in the link

they provide between the institutions of common law and those of the civil law.

47 Livery Companies are trade associations based in the City of London. They originally developed as guilds. They were responsible for the regulation of

their trades, controlling, for instance, wages and labour conditions.

48 To bind by articles set forth in a contract, such as one of apprenticeship.

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C H A P T E R 3 3. THE MODERN NOTARY

The modern day notary public is an officer of the law who operates in a world of paper-

based transactions where the use of traditional signatures and seals are mandatory. They

are generally discussed in terms of two separate and distinct categories i.e., those

operating under “common law” versus those operating under “civil law”.49 However,

notaries in the United States of America with the exception of those in Louisiana, and to a

lesser extent Alabama and Florida appear to form a third and distinct group. It may

argued that these normal USA notaries operate in a manner similar to Justices of the

Peace in Australia. These matters are borne out by a description of a notary in a recent

brochure of the National Notaries Association of America which states as follows:

“Unlike the high-ranking notarios publicos50 of Latin America, the Notary Public

of the United States does not prepare immigration documents or hold a highly

prestigious position equivalent to that of a judge. The Notary is not an attorney

and may not prepare legal documents or give advice on immigration or other

legal matters (unless the Notary also happens to be a member of the bar).”51

The cornerstone of notarial practice is that all three elements of the notarial act, which

includes physical appearance in person of a principal before the notary, must occur at the

same time and place whether or not the act is paper-based or electronic. They operate

either in a common law and or civil law jurisdiction dependant determined by country of

residence. Notaries in England and Wales and most commonwealth countries which were

former colonies of Great Britain follow the common law whilst the majority of notaries in

49 N.P.Ready Brooke’s Notary 12th ed (2002)

50 The same as Civil Law notaries in Europe and other civil law countries and common law notaries of England & Wales and most commonwealth

counties i.e., Australia

51 National Notary Association of America “What is a Notary Public” (2005)

21

Europe and those counties, i.e., Latin America countries which were former colonies of

the European powers operate under civil law principles.

3.1 Appointment of Notaries

3.1.1. Australian Notaries

In Australia notaries are appointed by the Supreme Court of the state in which the

notary resides,52 with the exception of the State of Queensland,53 where, since

July 2002, remains the only state in Australia where notaries continue to be

appointed under authority of the Archbishop of Canterbury, through the office of

the Master of Faculties. Whilst their function is not regulated by statutes and is

wholly based upon practice,54 their function is nevertheless recognized by

statute.55

A notary public, with the exception of South Australia and the Northern Territory,

where there is no statutory requirement for applicants to be a member of the legal

profession, 56 is required to be a practising legal professional. Qualifying periods

vary from jurisdiction to jurisdiction.

52 Review of the Evidence Act 1958 (Vic) and review of the Role and Appointment of Public Notaries – Chapter Eight – The Position in Other

Australian Jurisdictions.

53 Queensland has no legislation governing the appointment of notaries, and the jurisdiction of the Court of Faculties to appoint notaries public is

dependent on historical accident and consent. The Court of Faculties is a court of the Archbishop of Canterbury. The chief officer of the Court of

Faculties is the Master of the Faculties. As to the history, functions and powers of the Court of Faculties with respect to the appointment of notaries

see generally Halsbury’s Laws of England, 4th ed, Vol 33, para 702. See also Brooke’s Notary, 12th ed, Sweet & Maxwell, London 2002, pp 1-17.

There is no legislation in Queensland governing the method by which an application for appointment as a notary public in Queensland should be

made to the Court of Faculties.

54 Practice Memoranda – The society of Notaries of Queensland – 1st May 1993

55 The Land Titles Act 1994 Section 161 and Schedule 1

56 In South Australia and the Northern Territory the legislation allows for the appointment of persons who are not legal practitioners as public notaries (s

91 Legal Practitioner’s Act 1981(SA); s 4 Public Notaries Act 2001(NT)). In September 2003, Justice Debelle of the South Australian Supreme Court

in refusing an application by a former overseas notary public, who while holding a law degree in another jurisdiction was not admitted to practice in

Australia:

“A person who is not a legal practitioner should not be admitted as a public notary except in exceptional circumstances. In my view the applicant for

admission who is not a legal practitioner must satisfy the court that he or she is of good character and has by reason of experience or qualification a

wide knowledge of legal and commercial affairs.”

22

Unlike civil law countries with legal systems based on principles derived from

Roman law, there has never been any attempt to codify the precise nature of the

notary’s office in Australia. To understand the role of the Australian notary one

must attempt to glean from any number of sources including those maintained in

England and Wales, where the notary’s office and the role are not defined by any

statute or other instrument. Halsbury’s Laws of England (4th ed., re-issue). Vol.

33, para 701 states:

“A notary public is a legal officer appointed by the Court of Faculties,

whose general role it is, amongst other matters, to draw, attest or certify,

under an official seal, documents which are intended for use in other

jurisdictions.”

In Australia the majority of notaries are now appointed by the State. However,

they continue to follow rules, which are a combination of custom, case law and

certain statutes containing provisions relating specifically to notarial duties, laid

down by the Master of Faculties under the authority granted to him by section 57

of the United Kingdom’s Courts of Legal Services Act 1990,

This is different to civil law jurisdictions; those countries whose legal systems are

derived from Roman law including, for example continental Europe and Latin

America.

3.1.2. England and Wales

In England and Wales the situation is not all that dissimilar to Australia, notaries are

appointed by the Archbishop of Canterbury and not the British government. They are

officers of the law, but the nature of their office has never been codified; their acts

23

lack probative status, although they tend to enjoy enhanced evidential status in most

civil law countries

3.1.3. United States of America

Each state in the United States has different requirements for the appointment of a

notary public. Notaries are appointed by State Governors with the exception of the

District of Columbia where the President of the United States appoints Notaries.

Where trained notaries are allowed, the practice of these jurists is limited to non-

judicial legal advice, property conveyancing and legal drafting. With the

exception of notaries from Louisiana and some from Alabama and Florida, in

most instances notaries within the United States are not empowered to act outside

their own state and in some instances their own county and particularly beyond

the bounds of the United States.

3.1.4. Civil Law Notaries

The role of a notary in civil law countries is much larger than in common

law countries. Regulations governing notaries have always been a strictly national

affair, with adherence to a nationality requirement. This adherence to a nationality

requirement symbolizes a close and special relationship between governments and the

profession, an arrangement which both sides are keen to maintain. It has been the

governments that have laid down basic regulations governing key matters such as

access to the profession, code of conduct, and training, with the professions

themselves merely supplementing and adding their own rules

They frequently undertake work done by such governmental agencies as the Titles

Office as well as other agencies. The qualifications required by and imposed on

notaries in civil law jurisdictions are much greater than those imposed upon

common law notaries.

24

Significant weight attaches to documents certified by notaries and sealed with the

notary’s seal. The acts of Civil Law notaries, who as public officers discharge

statutory duties in a range of legal transactions, are seen as being probative – a

document certified by a notary is taken to be beyond dispute and therefore proved.

Civil Law notaries are usually limited to areas or private law, which forms that

part of the legal system, the jus commune,57 involving the law of contract or torts

and includes:

• property conveyancing and registration,

• contract drafting,

• commercial transactions,

• successions and

• other estate related matters.

They usually have no authority to appear before tribunals or courts on behalf of

their clients.

Private law is distinguishable from public law, which deals with relationships

between legal persons (i.e., individuals, business entities, and non-profit

organizations) and the State, including regulatory statutes, penal law and other

laws that affect the public order.

The formation of the European Union gave rise to the “Conference of Notaries of

the European Union (CNUE)”, which coordinates the positions of the various

notarial associations of member countries. The aim of the Conference is to

propose solutions aimed at facilitating the circulation of notarial instruments and

57 Jus commune or ius commune is Latin for "common law". It is often used by civil law jurists to refer to those aspects of the civil law system's

invariant legal principles, sometimes called the law of the land in English law. The phrase the common law of the civil law systems means those

underlying laws that create a distinct legal system and common to all its elements.

25

cooperation among the various member Notary associations. Member countries

include Germany, Austria, France, Spain, Belgium, Italy, Latvia, Lithuania,

Slovakia, Greece, Hungry, Netherlands, Luxembourg, Portugal and Poland.

3.2. The Notary Seal

A notarial act can be best described as being an action of a notary public authenticated

by the signature and official seal of the notary in question. Although there is no

prescribed design for a notary’s seal it is of such importance, across all jurisdictions,

that seals are required to be of such a design as to prevent forgery; that is to say that

individual notaries should be able to authenticate their individual seals. A notary’s

seal should contain the notary’s full name, the city or place of residence and the words

“Notary Public”. Ideally notarial seals should also contain some distinctive design or

mark so that the engraver can detect any attempt to copy or imitate the design.

Upon appointment notaries are required to lodge a specimen of the seal and their

signature with the appropriate authorities. In Queensland, notaries are required to

lodge a copy of their seal and signature with the Court of Faculties as well as with as

the Queensland society.

26

Figure 2 – Seal of a Practicing Notary Public58

3.3 The Role of The Notary Public

Governments around the world require that important commercial or other documents,

which may become part of the public record and which originate in another

jurisdiction, be notarized before they have legal effect in a particular jurisdiction.

Hence, a large proportion of the Australian notary’s day-to-day work is the

verification of documents intended to take effect in a foreign jurisdiction. This is

done either on the document itself or by a separate notarial certificate attached to the

document together with the notary's personal seal. Other common functions are:

a. the separate authentication of certified copies of documents e.g., certified

copies of birth certificates, academic awards etc; and

b. the taking of affidavits particularly those to be executed in foreign

countries.

Australian notaries need to be familiar with the principles and practice of foreign law.

Many Australian notaries have migrants or decedents of migrants as clients. They are

often required to prepare documents, such as:

• contracts,

• mortgages,

• powers of attorney,

• articles of incorporation and certificates of good standing,

• life certificates, 59

• wills and

• other instruments intended for use in foreign jurisdictions

58 With the kind permission of Mr. C.M.F. Langdon a member of the Notary Society of England and Wales – Hastings East Sussex TN34 1QT

59 Proof of Identity and that the person is still living - Normally required where a resident of Australia is in receipt of a pension or other benefit from

their country of birth.

27

They may be required to handle conveyancing of overseas properties on behalf of

their clients in Australia. They are often required to prepare documents intended to

take effect in another jurisdiction. If a document is destined for use in a civil law

jurisdiction, they are normally prepared in public form, usually in the language of the

destination country.

The notary authenticates the execution of the documents when he attaches his

certificate to the documents or, if the documents are in the public form, embodies it in

the document itself. This relates to the physical acts of execution of the document by

the affixing of the common seal and the signing of the document by those persons

authorized to do so or, in the case of a company that does not have or uses a seal, in

the presence of persons authorized to represent the company at law. When drawn in

this form, the notary prepares at least two originals, one of which is delivered to the

clients and the other retained in the notary’s protocol.

Because foreign governments require that the Notary’s authority and seal be

“legalized”60 before any notarized documents can have legal effect Australian

notaries are required to lodge specimens of their signatures and seals with the

Department of Foreign Affairs and Trade (DFAT), or with consular representatives.

60 Legalization, as defined I Article 2 of the Hague Convention, is “the formality by which the diplomatic or consular agents of the country in which the

document is to be produced, certify the authenticity of the signature and the capacity in which the person signing the document has acted and where

appropriate, the identity of the seal or stamp which it bears.”

28

3.4. The Apostille Convention

In October 1961, the Hague Convention on “Abolishing the Requirement of

Legalization of Foreign Public Documents – the Apostille Convention” came into

force. The Conference is a global inter-governmental organization with more than 80

member States. In the “Explanatory Report on the 1961 Hague Legalization

Convention”, the author61 gives the following description of the convention:

“The Convention reduces all of the formalities of legalization to the simple

delivery of a certificate in a prescribed form, entitled "Apostille", by the

authorities of the State where the document originates. This certificate, placed

on the document or on a slip of paper attached thereto called an "allonge", is

dated, numbered and registered. The verification of its registration can be

carried out without difficulty by means of a simple request for information

addressed to the authority which delivered the certificate. By reason of the

simplicity with which the authenticity of the certificate may be checked, as

well as its uniform appearance, the maxim acta probant sese ispa, 62can once

again take effect.”

61 Yvon Loussouarn (1961). Explanatory Report on the 1961 Hague Legalization Convention [html]: 15

62 Documents prove themselves

29

Figure 3 - HCCH Apostille Certificate - http://hcch.e-vision.nl/upload/apostille.pdg cited 22 October 2004

Figure 4 - HCCH Apostille Certificate http//hcch.e-vision.nl cited 22 October 2004

The Convention only applies to documents in the public forum, which are documents

emanating from an authority or official connected with a court or tribunal of the State.

30

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In Australia an Apostille is obtained from the Federal Government’s Department of

Foreign Affairs and Trade (DFAT) office in the State or Territory in which the

Australian public document was issued. They include birth, death and marriage

certificates; extracts from commercial and other registers; patents; court rulings;

notarial acts (including attestations of signatures); and academic diplomas issued by

public institutions.

They can include official certificates, which are placed on documents, such as official

certificates recording the registration of a document, or the fact that the document was

in existence on a certain date.

The Convention stipulates that an Apostille only certifies the authenticity of the

signature, the capacity in which the people signing the document have acted, and

where appropriate, the identity of the seal or stamp that the document bears. It does

not relate to the contents of the underlying documents themselves.

3.5 Elements of the Notarial Act

Ready in Brooke’s Notary 63 defines a notarial act as “an instrument recording the

execution of a deed, contract or other writing,64or verifying some fact or other thing

done.” Dunford, 65 expands Brooke’s definition by describing a “notarial act” as

being those acts of verification and authentication, which provide the evidentiary basis

for a transaction.

However, under Civil Law the whole of what is said, done or agreed to between the

parties is regarded as the “act”; an important fact to remember as much of the work

undertaken by Australian notaries is executed in Civil Law jurisdictions.

63 N.P. Ready Brooke’s Notary 12th ed (2002) pp65

64 In other legal systems the writing is called an act, although this word in its original and more appropriate use expressed the whole of what was64 s

said, done or agreed between parties” Burge Commentaries on Colonial and Foreign Laws ( 1st ed, 1830 ), p. 699

65 The general Notary, 1999, Dunford, The Notaries Society (UK), Chapters 7 – 10 inclusive

31

Under the common law, notarial practice is reliant upon Government services such as

the Registry of Probate in the Supreme Court, the Land Registry and the records kept

by the Australian Securities and Investment Commission (ASIC). In Civil Law

jurisdictions, the notaries in those jurisdictions record and retain much of this

information.

For instance in transactions involving land, the Civil Law notary will not only attest

the execution of the documents of sale or transfer; but also verify the title is in the

name of the vendor and that the vendor has authority to enter into the transaction.

Two forms of notarial acts exist, firstly notarial acts in public form and secondly

notarial acts in private form. Ready66 summarizes the essentials of the notarial act as

comprising various elements namely:

• The name of the notary

• The date of the notary act

• A statement that the notary is admitted to act in the place of the notarial act

• A description of the act

• The notary’s signature

3.5.1. The Notarial Act – Private Form

In many instances, the client will execute a private document, usually with a

number of witnesses. Ready in Brooke’s Notary 67 defines a notarial act in

private form as “a certificate or attestation under the hand and seal of a notary

appended to or placed on a private document signed by one or more parties.”

This the most common form of notarial act performed by Australian notaries.

66 N.P Ready Brooke’s Notary 12th ed.(2002) pp65

67 N.P Ready Brooke's Notary 12th ed (20020 5 -04 pp65.

32

With an act in private form, the notary attaches or appends a certificate or

attestation under his hand and seal on a private document signed by one or more

persons. In this case, the notary is not the author of the document he is

authenticating. The notary will ensure:

• the identity of all parties;

• that all signatories have the requisite legal capacity;

• that the document was executed freely with full understanding of its terms;

and

• that there is no fraud or illegality involved.

A major characteristic of an act in private form is that the notary is not normally

the author of the document, and therefore not deemed responsible for the content

of it. In many instances with documents relating to the registration and

assignment of intellectual property, the notary will receive the documents, often

expressed in English and another language and prepared by a patent or trademark

attorney. Under such circumstances, the notary will simply attest the execution by

a proper representative of one or more of the parties. An exception to this is the

“certificate of corporation” which requires the notary to certify the existence of

the body corporate as well as the official capacity of the person appearing before

him.

3.5.2. The Notarial Act – Public Form

In the case of a notarial act in public form, the notary is the author of the

instrument, for example the drafting of a contractual relationship or power of

attorney. The instrument concludes with a statement by the notary 68 in which the

68 Eschatocol - The final section of a document, which may include a formulaic sentence of appreciation, and the attestation of those responsible for the

document (the author, the writer, or the counter signer, and any witnesses to the enactment or the subscription).

33

notary certifies that he has met and complied with all requirements of applicable

law governing the formal aspects of the instrument. 69 The question of whether

or not notarial acts are public or private acts depends upon the legal requirements

of the jurisdiction in where the documents are be enacted. It must be noted that

all the requirements for a notarial act in the private form must be present to meet

the requirements of the public form.

The elements and characteristics of an act in public form are described by

Ready,70 Dunford,71 and Zablud72 in the following way:

• A narrative, written in the first person, starting with the notary’s name and

the date of his admission, enrolment or other qualification to act. This

includes the location in which the notary has jurisdiction and is

compulsory in civil law countries;

• A statement which includes the location where the act took place and the

date. This is necessary because of the lex actus 73 which governs the act

itself and may also be of importance under the rules of Conflict of Laws;

• The preamble sets out the appearance before the notary of those involved

including their personal particulars;

• The capacities in which they appear; and

• The seal of the notary.

The content of the instrument is determined by the purpose for which it is

intended in the destination jurisdiction. Different jurisdictions have differing

requirements. For example, notarized documents related to a “power of 69 N.P Ready Brooke's Notary 12th ed (2002) 5 -03 pp65.

70 N.P Ready Brooke's Notary 12th ed (2002) 5 -03 pp65.

71 The General Notary, 1999, Dunford, The Notaries Society (UK) pp45 & 165

72 “A Notary’s Forms & Precedent” Peter Zablud Psophidian Press pp 1-2; Forms 5.3 & 5.5.

73 The law of place and signature

34

attorney” to be executed in Spain and dealing with land, appointment of

litigation lawyers to conduct certain legal cases or powers to administer

deceased estates, must be in the public form. In India and South Africa the law

requires that a power of attorney or a deed be witnessed by two witnesses and

notarized by a notary. This means that the notarial certificate records both the

presence and subscriptions of the two witnesses. However, in France a power of

attorney is normally not in the public form unless it deals with land related

matters.

3.5.3. Foreign Language Documents

Many Australian notaries act similar to Scriveners in that they prepare public

documents in foreign languages for their clients, a significant advantage as this

elevates the need for translation.

3.6. The Notarial Protocol

Like their English and Welsh counterparts, Australian notaries are required to keep

and maintain a register or “protocol” of notary acts made and performed by them.

They are required to record the nature of the act, its purpose and date, the name and

addresses of the parties to the act; and the role performed by the notary.74

When a notary ceases to practice, the register or “protocol” is to be transferred to

either the notary who is taking over the practice, another notary within the practice or

if neither of these is practical or possible, to an archive designated for the purpose by

the Master of Faculties.

The situation is somewhat different in civil law jurisdictions, where the parties to the

act receive a copy of the instrument but never the original. The original document is

74 N.P Ready Brooke's Notary 12th ed (200) 5 -05 pp66 -68.

35

retained by the notary who is required to retain it in his archive or protocol for an

unlimited period thereby creating an ever-growing space and cost problem.

3.7. Conclusion

Today the Notary Public practices within clearly delineated areas of law. Their

strength is in preparing accurate, reliable legal documents which are accepted for

execution in other jurisdictions. With the advent of post war migration, Australia has

become very much a multi cultural country and as such Australian notaries have a

unique position within the Australian legal system in as much as they are

internationally recognised and have the authority to prepare, attest and certify deeds

and other documents for use internationally or outside Australia.

They prepare, attest, witness or certify a wide range of documents for use overseas

which include:

• Matters relating to inheritance issues.

• Genealogical services - beneficiary traces - inheritance - deceased estates.

• Matters of Foreign law.

• Execution of wills and testamentary instruments in foreign jurisdictions.

• Entitlements under foreign wills for offshore relating to property, and dealings

with such property.

• Death duties, tax issues and receipt of benefits in Australia or offshore

jurisdictions.

• Foreign estates, including correspondence in foreign languages, notarial

services for overseas powers of attorney and other documents and instruments,

with guidance throughout the entire procedure.

36

C H A P T E R 4 4 THE ELECTRONIC NOTARY – A CRITIQUE

During the late 1980’s, Electronic Data Interchange (EDI),75 largely developed under the

“Open Systems Interconnection (OSI)” model, in two ways, itself subject to much

governmental approval for usage in the public sector. In the United States, appropriate

EDI standards and applications were developed around the ANSI X12 standard whilst in

Europe and elsewhere in the world, including Australia, the United Nations EDIFACT 76

standard was used. As the need for higher levels of trust and related security provisions

for electronic procurement became apparent, documents became notable. Of particular

note under free trade77 agreements, European study groups by the late 1980’s had clearly

proposed electronic document notarization services through differing techniques. One

proposal was to use relative industry organisations including the chemical, motor vehicle

and aerospace industries. 78

4.1 Electronic Document Notarization

4.1.1. TEDIS Group

In 1989, the “Trusted Electronic Data Interchange Systems (TEDIS)” group had

formed to provide for high levels of trust in EDI systems. From the point of view

75 In 1979, the American National Standards Institute (ANSI) chartered the Accredited Standards Committee (ASC) X12 to develop uniform standards

for inter-industry electronic interchange of business transactions-- electronic data interchange (EDI). ASC X12 develops, maintains, interprets,

publishes and promotes the proper use of American National and UN/EDIFICE International Electronic Data Interchange Standards. Electronic Data

Interchange (EDI) is the computer-to-computer exchange of business data in standard formats. In EDI, information was organized according to a

specified format set by parties, allowing a “hands off” computer transaction that requires no human intervention or re-keying on either end. The

information contained in an EDI transaction set is, for the most part, the same as on a conventionally printed document. Traditional applications of

EDI were purchase orders, bills of lading, invoices, shipping orders and payments. However, the development of standards and the widespread use of

computers encouraged the use of EDI in many new arenas including health care insurance and management, record-keeping, financial services,

government procurement, and transactions over the Internet. [The Accredited Standards Committee (ASC) X12, 2001]

76 An example in Australia was and still is the Australian Customs Services network.

77 In 1989 at the European Union EDI Conference in Brussels the French proposed that an Electronic notary could provide an independent record of

when company A sent a trade document to company B. Further more it was proposed that the various Industry Associations and Peak Bodies could

act as Electronic Notaries for their members to either record the time and date when e-documents are sent and with certain key documents retain an

encrypted copy of a documents to verify the information that has been sent and more important received. Stephen Gould - Australian Senate Inquiry.

Chair Management Committee. Australia - United States. Xzig. Free Trade Agreement http://www.Aph.Gov.Au/Senate/Committee/

reetrade_Ctte/Submissions/Sub391.Pdf cited

78 Personal Comment – Prof W. Caelli – 12 September 2005

37

of the study undertaken in this thesis, TEDIS developed documents in two

important and relevant areas firstly:

a. Integrity and confidentiality for EDI transactions, and the use of digital

signatures based on the concept that integrity and confidentiality together

with signatures formed that basis of trust over the centuries in the “paper

world” and

b. Transaction “notarization services” based upon the use of “third party”

industry organisations similar to the classic European notaries.

In June 1989, the French delegation to the TEDIS workshop at European Union’s

EDI conference in Brussels proposed that various industry associations and peak

bodies could act as “Electronic Notaries” and provide an independent record of

transactions between members i.e., when company A transmitted trade documents

in electronic form to company B and vice versa.

In addition to digital signatures, as mentioned above, it should be noted that digital

certificate technology and services had not gained any notable market acceptance

at that time. Rather the original public key concept of appropriate key

management through a trusted, industry based directory service was proposed.

The concept of a trusted directory incorporating validated member identities and

credentials as well as their public key and/or keys needed for signature

verification and/or private communication could be seen as being more closely

aligned to the traditional European notary service.

4.1.2. American Bar Association

By 1994, the American Bar Association’s (ABA) Information Security committee

recognised that the "traditional" notarial function of the proposed specialization,

38

standing alone, was extremely important to the overall proposal. They saw the

need to ensure that the notarial acts of US notaries would receive full force and

effect in foreign jurisdictions. Foreign notaries and jurisdictions do not recognise

U.S. notaries, with the exception Louisiana and more recently some in Alabama

and Florida internationally. Both civil and common-law notaries public often

refuse on procedural grounds, and the perceived lack of legal qualifications, to

accept documents bearing U.S. notarizations. 79

The ABA saw a specialist, a common law lawyer whose function would resemble

that of the office of notary public found in civil and common law jurisdictions

would be able to bridge the gap between the two legal traditions. They believed

under this new specialisation that transactions of U.S. notaries would meet the

requisite procedural and legal formalities under both civil and common law based

jurisdictions. 80

Like the French, the ABA also recognized the potential of Electronic Notaries. In

addition to the prerequisite legal expertise the proposed specialist would also

possess a high level of qualifications in information security technology, allowing

him to electronically certify and authenticate all the elements of an electronic

commercial transaction crucial to its enforceability under both U.S. and foreign

law.

4.1.3. The UK CyberNotary Association

At the same time as the ABA investigation, a pilot study was conducted by

members of the UK CyberNotary Association also investigating the use of digital





39

signatures together with the issuance of electronic notarial certificates. The UK

association recommendations followed closely those made by the ABA. In a

presentation entitled “Notarial Acts in Europe and Electronic Signatures”, the

president of the UK CyberNotary Association, W.B. Kennair stated:

“The concept of CyberNotary rises from the premise which the electronic

trade in the final analysis depends on confidence that the contractors

grant to the safety of the transmission and the integrity of the content of

their communications, and their certainty that these communications will

be recognized like having executory force in all the jurisdictions, main

roads or foreign.” 81

Both the American and UK working parties contended that whilst other models

existed for electronic commerce the best person to fulfil the proposed role would

be an internationally qualified “Electronic / CyberNotary”. In the traditional

paper based world, it has been the notary public who has for centuries fulfilled the

role and been acknowledged as a trusted third party.

4.1.4. HCCH – International Forum of e-Notarization and e-Apostilles

In 2003, a special commission met in The Hague to review the practical

operations of The Hague Convention of 5 October 1961 Abolishing the

Requirement Of Legalisation For Foreign Public Documents (The Apostille

Convention).

The commission identified a four stage process for the issuing of an Apostille in

respect of which the application of information technologies (IT) might be

81 The role of the Notary in the Electronic Trade - W.B. Kennair LL.B, scrivener notary London

40

considered. The members saw no reason in principle, provided the use of IT

would prove to be cost-efficient, why IT should not be applied to the:

• maintenance of a secure electronic database of signatures for the purpose

of verifying the signatures appearing on public documents for which an

Apostille is requested;

• for the use of word-processing technology to complete the information

which would appear on the Apostille;

• use of electronically reproduced signatures 82 of the issuing authority

which would be inserted through secure electronic means and printed on

the Apostille; and

• the maintenance of an electronic register.

The Commission also recommended the development of techniques for the

generation of electronic Apostilles taking into account inter alia the UNCITRAL

model laws on electronic commerce and on electronic signatures, both being

based on the principles of non-discrimination and functional equivalence.

82 The historical legal concept of a "signature" recognizes any mark made with the intention of authenticating the marked document. The use of hand-

written signatures to authenticate documents dates to Roman times. They were the first to introduce the practice of adding a handwritten sentence at

the end of a document, stating that the signer certified the document. A standard feature of Roman law, it became the basis of most Western common

and civil law systems. In1677, the English Parliament enacted "An Act for Prevention of Frauds and Perjuries". The act, which would eventually

spread across most areas of English contract law, required that parties to certain types of transactions certify in writing that the documents were signed

by all the parties to the transaction.

In a digital setting, today's broad legal concept of "signature" may well include markings as diverse as digitised images of paper signatures, typed

notations or even addressing notations, such as electronic mail origination headers. A digital signature is a data item that vouches for the origin and

integrity of a message. It is comparable to a hand-written signature because a single entity can use it to sign a message. It relies on a “key pair” with

the private key being known only to the person creating the “digital signature”. The originator of a message uses a signing or private key to sign the

message prior to transmitting both the message and its digital signature to a recipient. The recipient uses verification or public key to verify the origin

of the message and that it has not been tampered with. Digital signatures are a popular example of how public key cryptography can be used to make

communication over the Internet more secure for organizations as well as individuals. In 1999, the Federal Government in Australia passed laws

providing for the use of “electronic signatures” as distinct from “digital signatures” when it introduced the Electronic Transactions Act 1999 (ETA).

The Act was limited in that it covered only electronic communications with the Commonwealth Government and was further restricted to

requirements under Commonwealth Statutes listed in regulations to the Act. Similar legislation was enacted by New Zealand.

Since the introduction of the Federal ETA all Australian states and Territories have introduced state acts that are fundamentally identical in their

application to the federal act. The Queensland Act differs from the federal legislation and that introduced by the other states in as much as it does not

apply to corporations law or corporations regulations.

41

4.2 Conclusion

As envisaged by the TEDIS legal workshop, the Information Security Committee of

the American Bar Association, UK CyberNotary Association and other interested

parties the proposed new role of Electronic or CyberNotary could be applied to

virtually any transaction that requires the intervention of a trusted third party.

However, for the concept and its practical realisation to gain international acceptance

and recognition, the office of Cyber or Electronic notary would have to replicate all

the established conventions now followed by notary publics across all jurisdictions.

Of particular note under free trade agreements,83 the European study groups had by

the late 1980’s clearly proposed electronic document notarization services through

differing techniques. One proposal was to use relative industry organisations

including the chemical, motor vehicle, and aerospace industries, as mentioned

above.84

They reiterated the need for a legal specialist possessing a high level of qualification

in information security technology, which would allow that person to electronically

certify and authenticate all the elements of an electronic commercial transaction

crucial to its enforceability under both U.S. and foreign law. Digital signatures, 85

83 In 1989 at the European Union EDI Conference in Brussels the French proposed that an Electronic notary could provide an independent record of

when company A sent a trade document to company B. Further more it was proposed that the various Industry Associations and Peak Bodies could

act as Electronic Notaries for their members to either record the time and date when e-documents are sent and with certain key documents retain an

encrypted copy of a documents to verify the information that has been sent and more important received. Stephen Gould - Australian Senate Inquiry.

Chair Management Committee. Australia - United States. Xzig. Free Trade Agreement http://www.Aph.Gov.Au/Senate/Committee/

reetrade_Ctte/Submissions/Sub391.Pdf cited

84 Personal Comment – Prof W. Caelli – 12 September 2005

85 Digital signatures are created by running message text through a hashing algorithm which yields a message digest. The message digest is then

encrypted using the private key of the individual who is sending the message, turning it into a digital signature. The digital signature can only be

decrypted by the public key of the same individual. The recipient of the message decrypts the digital signature and then recalculates the message

digest. The value of this newly calculated message digest is compared to the value of the message digest found from the signature. If the two match,

the message has not been tampered with. Since the public key of the sender was used to verify the signature, the text must have been signed with the

private key known only by the sender. This entire authentication process will be incorporated into any security-aware application. For a signature to

be regarded as valid there needs to be a link between the signer and their signature. Hand-written signatures are physically linked to the signer

although forgery is may still be possible. The situation is slightly more complex with a digital signature. In order to verify a digital signature the

same hash function as used by the sender and the sender's public signature key is required.

42

were seen as the best medium to provide the CyberNotary with the ability to

electronically certify the identity of an originator of a commercial message. Digital

signatures were considered as providing a very high level of assurance of the content

along with the time and date of "notarization," and insertion in the notary’s protocol

for archival purposes. were seen as the best medium to provided the CyberNotary

with the ability to electronically certify the identity of an originator of a commercial

message. Digital signatures were considered as providing a very high level of

assurance of the content along with the time and date of "notarization," and insertion

in the notary’s protocol for archival purposes.86

It was proposed that a client would physically appear in front of a notary who could

then generate a public key pair for the client. The process would enable the client’s

public key to be formed into an appropriate notarial certificate which may be used for

verification purposes within the proposed e-notary system. 87

However, if the signing process itself is not conducted in a highly trusted

environment, even though a digital signature is attached, it may be possible to

repudiate the document’s content at a later time. In particular, commodity PC’s do

not provide such an environment without substantial hardware and software additions

that would enable a user to be certain that what they see on the screen is indeed the

real document being digitally signed, a requirements known as “What You See is

What You Sign (WYSIWYS)”.

Unlike papyrus, the ancient Egyptians' choice of writing material which can last for

thousands of years, most computer hardware, and software systems, including storage



87 When a party generates a key a pair and issues a digital certificate in which the details of the certification process are enumerated

43

and electronic document archival devices, may only last for tens of years, and can

even be rendered obsolete over shorter time periods, i.e., two years.

The proposed use of Public Key cryptography for e-notary services necessitates the

involvement of an appropriate entity to verify the identity of the client and accept

appropriate cryptographic keys to used by a client. In principle an e-notary could, as

described elsewhere, provide a public key certificate to a client which incorporates

that client’s public key, associated with the client’s secret signing key. In this way a

party wishing to verify that the client’s digital signature could use the certificate

provided by the notary to verify the signature. However, the entity or person wishing

to use the public key certificate for this verification process must firstly ensure

themselves that the notary’s certificate is in its self valid. 88

88 A PKI is essentially a trust framework that organizations can build into their network environments and security policies. The concept of a PKI has

been an attempt to make Internet transactions as secure as face-to-face transactions. In the wrong hands, Internet technology can be used to intercept

and forge messages, steal sensitive information, eavesdrop, and defraud organizations and individuals. These threats exist because persons who have

never met have the ability to conduct transaction across the Internet remotely. As a result the security provided by face-to-face meetings is lost. In

order to conduct business with partners, customers, suppliers or contractors over the Internet, a strong infrastructure of trust and highly secured

systems is required. A public key infrastructure (PKI) can help mitigate the risks largely associated with e-commerce. A PKI makes it possible for a

person to identify and trust another Internet user, which may be a person, a computer, or some other electronic entity. In recent times the promise of

Public Key Infrastructure (PKI) technology has attracted a significant amount of attention across both the public and private sectors and as a result

many observers believe that the traditional function of the notary can be migrated into the world of electronic commerce through the medium of PKI.

44

C H A P T E R 5 5. ELECTRONIC NOTARY – NOTARIAL PRACTICE

5.1. Introduction

Is the role of the electronic notary distinct from that of the traditional paper-based

notary or are there sufficient similarities that their respective roles can be classified as

the same?

The idea of an electronic or cyber notary has developed in recent times as an

emerging role in the arena of electronic commerce89. If electronic notarial acts are to

become accepted commercial and legal practice, as more and more electronic

documents with electronic signatures continue to be exchanged and authenticated

using computers and allied data communications networks for transmission, then the

fundamental principles and processes of traditional notarization must remain the same

regardless of the technology used. While technology may change, the underlying

requirements must be met in ways suitable for the e-commerce era even though it is

really impossible to exactly emulate the accepted human interaction processes

involved in traditional notarial acts.

The term "Notary" is legally defined and most jurisdictions have criminal penalties for

those incorrectly applying or misusing the term.90 Therefore, if the term

“Electronic/Cyber notary service” is used as an analogy for the wide range of services

offered by traditional paper-based notaries then questions, which need to be answered,

include: 89 The Australian Attorney-General's Electronic Commerce Expert Group (ECEG) describe electronic commerce in the broadest sense, as: “any

information exchange which occurs over the superhighway (i.e. by wire or over-the-air transmission or a combination of the two) and encompasses

not only commercial transactions, but also all forms of social intercourse that may take place via the medium of the superhighway; that is,

"commerce" in its broadest sense”. The group expands the definition saying that: “in a strictly commercial setting, it would encompass all the steps

involved in negotiating, confirming and performing commercial transactions electronically and include both the contractual relationships formed in

those transactions and the regulatory or administrative steps necessary to the conduct of those transactions.”

90 Currently there is concern being expressed in some circles of the Notary profession in both in the United States and Latin America over the term

"Notario Publico" being used inappropriately within the US. In Latin America, a Notario Publico is, generally speaking, an attorney; whilst in the

United States, a Notary Public is normally a ministerial official of the court and not necessarily a member of the legal fraternity.

45

• “What is the intended purpose of an “Electronic/Cyber Notary Service”, and

• “Will it consist of IT related products and systems designed for use by a

traditional Notary, or will it be technology that performs "notarization"

functions specific to the e-commerce environment per se and not necessarily

used solely by the traditional notary?

5.2. e – Notarization and e – Apostilles

In 2003, the working group of the Hague Conference on Private International Law

(HCCH) on the “Practical Operation of the Apostille, Evidence and Service

Conventions” began to take a serious look at the technical as well as legal aspects of

the generation of electronic Apostilles. The group sought to establish whether

electronic public documents, in particular notarial acts and official certificates, fell

within the scope of the Convention. If they did, then questions to be answered

included consideration of what would be the legal impact of such technology on the

Apostille Convention. In particular, did the current framework of the Convention

allow for issuance and circulation of e-Apostilles?

In May 2005, The National Notary Association of the United States of America

(NNA) hosted a Forum convened by the Hague Conference on Private International

Law (HCCH) and the International Union of Latin Notaries (IULN) on e-Notarization

and e-Apostilles.

W B Kennair president of the UK CyberNotary Association, in a presentation entitled

“International forum on eNotarization and eApostilles”, put forward the proposition

that it is possible that an exact parallel, between notarial acts done in the traditional

paper based form and those which would be undertaken in the proposed electronic

environment, exists. He put forward the proposition that whilst there may be

problems which needed to be addressed from legal and business perspectives, it was

46

his opinion that the traditional notarial system already addressed many of the

theoretical problems associated with e - Notarization and e - Apostilles.

The forum concluded that, as most countries had enacted legislation recognising the

legal effect of electronic signatures and electronic documents, States should be

encouraged to issue electronic Apostilles as well as to facilitate electronic notarization

of public documents.

5.3. Technology vs Tradition

No principle is more critical to notarization than the requirement for the signer(s) to

appear in person before a duly commissioned notary public to affix or acknowledge

the necessary signature(s) for identity to be verified, coercion to be seen as being not

present, and for basic awareness by the notary. While technology may be suitably

identified and deployed to assist in unattended electronic notary service provision, the

basic nature of the presence of the human being who uses it, unfortunately, is not

reproducible.

5.3.1. The Notarial Seal

Before “Electronic/Cyber”, notarization can become a reality the question

requiring an answer is; “would technology, dictate how the act of notarization is to

be completed’ or “does that act of notarisation take on a new form in the

electronic sphere?” Depending on the technology selected, it may be possible to

combine an electronic signature with an electronic, graphical version of the

notary’s seal into a single element, with the seal becoming a component of the

signature or vice versa. Whilst there is no prescribed form of the type, size, or

nature of a notary’s official seal, due to the importance placed on the seal by

notary publics worldwide, there is a requirement that individual notarial seals be

of such a distinctive design that any attempt to imitate them would be readily

47

identifiable. However, components of traditional notary seals (e.g., serrated

border) may not readily translate into an electronic seal.

It would be essential that all of the information descriptive of the electronic

notary’s commission became integral to and part of or a secure attachment to the

notarized electronic document. In the world of the traditional notary public

standard practice is that the notary’s seal be kept under lock and key with a

locking device attached to the associated seal press. Technology based solutions

will need to incorporate a similar high level of security. 91

The concept of an electronic visual seal has been studied in “Visually Sealed and

Digitally Signed Electronic Documents: Building on Asian Traditions” by Yin

Miao (Vicky) Liu (2005), in which the author discusses the need for readily

recognisable and trustworthy graphical elements or “electronic seals” to be

attached to electronic documents. The general structure proposed by Liu is not

specifically aligned to the needs of the proposed e-notary.

A possible future answer to this question would be the development of a

“notarization tablet”. Technically it would appear feasible for a “notarization

tablet” sub-system to be developed for attachment to a conventional

PC/workstation in common use by notaries themselves. At the same time, a

computer graphic equivalent to a traditional notarial seal would be required. This

could be as simple as a straightforward digitization of the current physical seal.

The parameters for such a “tablet” would be as follows;

• Full page display;

• Attached keyboard and pointing device/writing stylus;

91 The Society of Notaries of Queensland – Practice Memoranda 1st May 1993.

48

• Smartcard / mag stripe /ARFID chip or badge subsystem to read/write to

such elements;

• Fixed function software sub-systems in tamper resistant read only memory

modules;

• Trusted pathways for all date entry and display; and

• cryptographic functions with associated application interfaces and

associated key management structures.

Such a concept and system has been readily accepted in the banking/finance/retail

industries through the concept of the “PINPad” unit. This high trust sub-system is

connected to an un-trusted system, such as a PC, cash register or point-of-sale

system in a retail outlet, etc. to provide:

a. all necessary encryption/decryption functions in a trusted environment;

b. trusted pathways for the entry of required data, and

c. trusted display so that the end-user can be confident that what is being

observed is the real data.

In this scheme, the un-trusted PC or other device purely acts as a conduit for

reliably entered, displayed and encrypted data in line with the WYSIWYS

principle stated above. Indeed, cost is not an argument in this case since the price

of such units has become commensurate with, or even substantially less than, the

price of most business software systems. The only problems appear to be those of:

• acceptance of the technology, and

• integration of it into current and planned e-commerce systems.

Given current widespread acceptance of the PINPad device in commerce,

user/notary training would appear to be minimal.

49

5.3.2. Notarial Protocol or Journal of Notarial Acts

In common law jurisdictions, eg., Australia, a notary's journal is a series of

numbered, sequential records of each act a notary performs during the course of

their term. In addition to the recorded dates for each numbered entry, the

sequential order of their entry serves as an additional measure of integrity since a

new entry cannot be "slipped in" between two previous ones. In addition, the

binding of a notary journal ensures that additional pages cannot be inserted or

pages removed without evidence of tampering being readily visible. The journal

remains in the personal possession and control of the notary.

However, to replicate such a document in an electronic environment would mean

that only the custodial notary, after being authenticated using technology such as

biometrics subsystems or the like, could make entries in the register.

5.4. Conclusion

Whilst not a problem for Australian notaries and those in most common law

jurisdictions, the requirement for Latin or Civil Law notaries to store all original

documents notarized by them continues to pose serious security issues in relation to

confidentiality, integrity and availability as well as storage volume problems. Overall,

current industry accepted PKI 92 products and services are being increasingly seen as

a being a balanced and secure solution to these problems, except for the storage

problem mentioned above, by the ITEF’s “Long Term Archive and Notary Services

Group (LTANS)”. 92 A PKI is essentially a trust framework that organizations can build into their network environments and security policies. The concept of a PKI has been

an attempt to make Internet transactions as secure as face-to-face transactions. In the wrong hands, Internet technology can be used to intercept and

forge messages, steal sensitive information, eavesdrop, and defraud organizations and individuals. These threats exist because persons who have

never met have the ability to conduct transaction across the Internet remotely. As a result the security provided by face-to-face meetings is lost. In

order to conduct business with partners, customers, suppliers or contractors over the Internet, a strong infrastructure of trust and highly secured

systems is required. A public key infrastructure (PKI) can help mitigate the risks largely associated with e-commerce. A PKI makes it possible for a

person to identify and trust another Internet user, which may be a person, a computer, or some other electronic entity. In recent times the promise of

Public Key Infrastructure (PKI) technology has attracted a significant amount of attention across both the public and private sectors and as a result

many observers believe that the traditional function of the notary can be migrated into the world of electronic commerce through the medium of PKI.

50

In the USA following the introduction of the US Federal "E-Sign" Act 2000 and the

Model Notary Act of 2002, which is designed to regulate the office of "Electronic

Notary”, a number of organizations including the National Notary Association 93 of

the United States have begun to offer "Digital Notary Services". Since the

introduction of the Model Act, a number of US States have moved to adopt it and as

such, many notaries in the United States now claim to perform paperless electronic

notarizations. They maintain that these actions fulfil the requirements of notarial law,

as well as providing a time/date stamping service. However, this is a matter of debate

for the reality of the matter is that documents notarized in this manner are not readily

accepted outside the United States or in many cases outside the jurisdiction in which

the document was “notarized”.

93 Electronic Notary Journal of Official Acts (ENJOA). In June 2003 the National Notary’s Association, a professional organization of more than

200,000 US notaries, endorsed a new system called the Electronic Notary Journal of Official Acts (ENJOA). The system is based Interlink

Electronics, Inc., ePad-i.d. system, a multi-biometric device, that combines Interlink Electronics' electronic signature technology with a digital camera.

It has been adapted to allow users to make electronic journal entries the same as they would in a paper journal: date, type of notarization, document

date, type of document, name and address of entries the same as they would in a paper journal: date, type of notarization, document date, type of

document, name and address of signer, fee and any other information required under US law. The system will record journal entries directly onto PC

or laptop as well as capturing and storing a signer’s signature, thumbprint and photograph electronically at the same time.

51

C H A P T E R 6 6. ELECTRONIC NOTARY – TECHNOLOGICAL ISSUES

6.1. Introduction

Both the American Bar Association’s Information Security committee and the UK

CyberNotary Association argue that whilst other models may exist for electronic

commerce, in this scenario, the best person to fulfil this role is an internationally

qualified Electronic or CyberNotary. Their contention is that for centuries the notary

public has been acknowledged as a trusted third party in the traditional paper based

world, a role which they continue to fulfil. Therefore by appearing in front of a notary

when the key pair is generated, a party can establish his bona fides to other users of

the system. In this process, known as digital certification, the notary establishes the

identity, capacity and authority to act. This process is akin to the role of a registration

authority, through the submission of the evidence of identity material at the time of

requesting the generation of the public key pair or the simple registration of the public

key in order to obtain the public key certificate from the certification authority. But

even this process is different to that of the traditional notary as in the traditional notary

position, the notary first verifies the identity of the person in their presence and then

either witnesses that person’s signature to the document or authenticates the document

itself. It is a case by case application which needs to be repeated even if the same

person attends the Notary on multiple occasions, whereas it has been suggested that in

the electronic environment the Cyber Notary is expected to verify the identity of the

person only once so that the public key certificate can be generated. For there to be a

correspondence to that which occurs in the paper based environment the Cyber Notary

would need to have in their presence the relevant person and re-identify that person on

each occasion. This would reduce the advantages of the electronic environment

unless appropriate security protocols could be developed which could do away with

53

the face to face transactions and yet create a sufficient trust environment that the

Cyber Notary is able to verify the correct person is involved in the transaction.

Public Key Infrastructure including digital signatures, 94 was seen as providing the

Electronic / CyberNotary with the ability to certify the identity of an originator of a

commercial message, establishing non-repudiation of the message by the originator,

whilst providing a very high level of assurance regarding the content of that message,

along with the time and date of "notarization," and insertion in the notary’s protocol

for archival purposes. 95

The use of a PKI necessarily involves the intervention of a person known as a “trusted

third party” commonly referred to as a Certification Authority (CA), who provides a

public key digital certificate, and/or a Registration Authority (RA’s), who establishes

the identity of the person using/owning the public key. The trusted third party, the

CA, generates a key pair for a client, or accepts a key pair that the client has

independently generated, and then issues a digital certificate in which the details of

the certification process are enumerated. 96

In the Latin Law/Civil Law system as previously mentioned, the storage of original

documents is a mandatory practice, with the Notaries required to produce a notarial

copy of documents for their clients, government registries, and anyone else who may

need to have a copy, whilst retaining the original documents. Consequently, this has 94 Digital signatures are created by running message text through a hashing algorithm which yields a message digest. The message digest is then

encrypted using the private key of the individual who is sending the message, turning it into a digital signature. The digital signature can only be

decrypted by the public key of the same individual. The recipient of the message decrypts the digital signature and then recalculates the message

digest. The value of this newly calculated message digest is compared to the value of the message digest found from the signature. If the two match,

the message has not been tampered with. Since the public key of the sender was used to verify the signature, the text must have been signed with the

private key known only by the sender. This entire authentication process will be incorporated into any security-aware application. For a signature to

be regarded as valid there needs to be a link between the signer and their signature. Hand-written signatures are physically linked to the signer

although forgery is may still be possible. The situation is slightly more complex with a digital signature. In order to verify a digital signature the

same hash function as used by the sender and the sender's public signature key is required.



96 The role of the Notary in the Electronic Trade - W.B. Kennair LL.B, scrivener notary London - Brookes Notary N.P. Ready 12th edit A5-01 pp 627

54

become a logistical nightmare in many countries 97 where entire buildings are

maintained.

6.2. IETF 98 - Long Term Archive and Notary Services (LTANS) Working

Group

The objective of the LTANS 99 working group is to define requirements, data

structures and protocols for the secure usage of necessary archival and notary services.

Whilst the group continues to develop protocols to access archive services supplying

long-term storage and non-repudiation services for digitally signed documents and

continue to define common data structures and formats.

In response to this growing need the Internet Engineering Task Force (IETF)

commissioned three working parties, whose work is still ongoing and may be

summarised as follows:

• Long-term Archive And Notary Services (LTANS) - Investigating long-

term archive services designed to support scenarios in which users must be

able to prove the existence of data at a specific point in time and be able to

demonstrate the integrity of data since that time and includes the technical

requirements for interacting with such services. In October 2004, this group

released an Internet-Draft document, which is subject to all provisions of

section 3 of RFC 3667. References for this document include:

97 In Austria, it is estimated that 90,000 notarial documents are created every year, whilst in Hungary the number is thought to be approximately 130,

000 documents per year.

98 The mission of the IETF is to produce high quality, relevant technical and engineering documents that influence the way people design, use, and

manage the Internet in such a way as to make the Internet work better. These documents include protocol standards, best current practices, and

informational documents of various kinds. http//www.ietf.org/rfc/rfc3935.txt cited 09 February 2006

99 The objective of the LTANS working group is to define requirements, data structures and protocols for the secure usage of the necessary archive and

notary services. First, the requirements for the long-term archive will be collected. Based on that information we will develop a protocol to access

archive services supplying long-term non-repudiation for signed documents and define common data structures and formats. Upon completion of the

archive-related specifications, we will address 'notary services' in a similar way. The term 'notary services' is not clearly defined. The working group

will determine which functions need standards, including transformation of documents from one format to another without losing the value of

evidence, electronic notarization, and further verification of legal validity of signed documents. We will determine the needs via the requirements

paper and act upon the results accordingly. http://www.ietf.org/html.charters/ltans-charter.html cited 09 February 2006

55

° [CERTSRV] Schmidt, A., Gondrom, T., and L. Masinter, "Requirements

for Certification Services", October 2004.

° [RFC3029] Adams, C., Sylvester, P., Zolotarev, M., and R.Zuccherato,

"Internet X.509 Public Key Infrastructure Data Validation and

Certification Server Protocols", RFC 3029,February 2001.

° [RFC3161] Adams, C., Cain, P., Pinkas, D., and R. Zuccherato,"Internet

X.509 Public Key Infrastructure Time-Stamp Protocol (TSP)", RFC 3161,

August 2001.

° [RFC3280] Housley, R., Polk, W., Ford, W., and D. Solo, "Internet X.509

Public Key Infrastructure Certificate and Certificate Revocation List

(CRL) Profile", RFC 3280,April 2002.

° [RFC3647] Chokhani, S., Ford, W., Sabett, R., Merrill, C., and S.Wu,

"Internet X.509 Public Key Infrastructure Certificate Policy and

Certification Practices Framework", RFC 3647, November 2003.

• Evidence Record Syntax (ERS) – investigating the requirements of users

who need to be able to ensure and prove the existence and integrity of data,

especially digitally signed data, in a common and reproducible way over a

long and possibly undetermined period. In July 2004, this group released an

Internet-Draft, updated in February 2006. References for this document

include:

° [ANSX995] American National Standard for Financial Services,

"Trusted Timestamp Management and Security", ANSX 9.95- 2005, June

2005.

56

° [I180141] ISO/IEC JTC 1/SC 27, "Time stamping services – Part 1:

Framework", ISO ISO-18014-1, February 2002.

° [I180142] ISO/IEC JTC 1/SC 27, "Time stamping services-Part 2:

Mechanisms producing independent tokens",ISO-8014-2, December 2002.

° [I180143] ISO/IEC JTC 1/SC 27, "Time stamping services - Part 3:

Mechanisms producing linked tokens", ISO-18014-3, February 2004.

° [RFC2026] Bradner, S., "The Internet Standards Process Revision 3",

RFC 2026, 1996.

° [RFC2119] Bradner, S., "Key Words for Use in RFCs to Indicate

Requirement Levels", RFC 2119, 1997.

° [RFC3126] Adams, C., Pinkas, D., Ross, J., and N. Pope, "Electronic

Signature Formats for long term electronic signatures", RFC 3126, 2001.

° [RFC3161] Adams, C., Cain, P., Pinkas, D., and R. Zuccherato, "Internet

X.509 Public Key Infrastructure Time-Stamp Protocol (TSP)", RFC 3161,

August 2001.

° [RFC3852] Housley, R., "Cryptographic Message Syntax (CMS)", RFC

3852, July 2004.

° [ETS2003] European Telecommunication Standards Institute (ETSI),

Electronic Signatures and Infrastructures (ESI);, "Algorithms and

parameters for Secure Electronic Signatures", ETSI SR 002 176 V1.1.1,

March 2003.

° [Mer1980] Merkle, R., "Protocols for Public Key Cryptosystems,

Proceedings of the 1980 IEEE Symposium on Security and Privacy

(Oakland, CA, USA)", pages 122-134, April 1980.

° [REQ2004] Wallace, C., Brandner, R., and U. Pordesch, "Long-term

Archive Service Requirements", I-D ???, 2005.

57

• Requirements for Certification Services – establishes the goals and

requirements for protocols and data structures for use with services that

provide additional means for users to ensure and prove the validity of data,

especially digitally signed data, in a common and reproducible way. In line

with the two other groups established by the IETF this group released a draft

document in October 2004, updated December 2005, as an Internet-Draft.

References for this document include:

° Adams, C., Sylvester, P., Zolotarev, M., and R. Zuccherato, "Internet

X.509 Public Key Infrastructure Data Validation and Certification Server

Protocols", RFC 3029, February 2001

° Adams, C., Cain, P., Pinkas, D., and R. Zuccherato, "Internet X.509 Public

Key Infrastructure Time-Stamp Protocol (TSP)", RFC 3161, August 2001.

° Wallace, C., "Long-Term Archive Service Requirements", draft-ietf-ltans-

reqs-03 (work in progress), October 2004.

° Brandner, R., "Evidence Record Syntax (ERS)", draft-ietf-ltans-ers-02

(work in progress), April 2005.

6.3. PKI and Certificate Revocation Lists

The LTANS group also sees the use of PKI technology as a potential solution to a

number of the problems associated with Long Term Archiving and Notary Services.

However, questions surrounding the operations and functions of Certification (CA’s)

and / or Registration Authorities (RA’s), in the context of notarization services, need

to be answered.

Firstly, the question of relevance of Certificate Revocation Lists (CRLs) to the

process of electronic notarization needs assessing. If an electronic or CyberNotary is

to operate within a Registration Authority (RA) or Certificate Authority (CA)

architecture, current and potential structures, as well as the actual performance of the

58

notarial duties themselves, need to be examined. This is outside the scope of this

thesis but is noted as a potential research direction.

Secondly, if an attacker were able to store a CRL, issued before implementing a,

private key compromise attack, e.g., if an incident were to take place whereby a

private/signing key is exposed and a relevant entry in a CRL is made, then the

possibility that an attacker could prevent an updated CRL from being used has to be

considered.

In this situation, the attacker could create a fraudulent document using the

compromised signing key to create an appropriate fraudulent signature that would not

be detected, since an earlier signature/verification public key would be used. Overall,

this attack scenario presents a challenge to the correct and timely synchronization of

CRL’s between a relevant CA and its clients.

CA agencies worldwide have begun to set up appropriate certificate archives

themselves, in order to be in a position to be able to verify that particular certificates

were valid at time of issue, and as a result e-signed documents were validly signed at

the time of signing. In this way, given that certificates are correctly date and time

stamped, clients of a CA may be able to invoke the correct certificate relevant to the

time and date of the signature on an electronic document.

6.4. Long Term Archiving of Notarized Documents and Evidence Record

Syntaxes

When considering a possible solution to the archival problems faced by notaries, in

particular civil law notaries who are required to retain the original of all notarized

documents, one has to consider methods available for authenticating the data far into

the future. To be realistic organizations offering their services CA’s, RA’s and TSA’s

59

can only guarantee safe storage and retrieval for a limited time. The prospects of

technological change over time, weakening or compromise of cryptographic and or

hash algorithms, security breaches or other incidents which may have a major impact

on their ability to provide data retrieval and validation services far in the future may

force any organization offering these services to cease operations.

The IETF - LTANS group has specified in RFC3161 a manner in which Evidence

Record Syntax (ERS) TimeStamps may be deployed and there by provide a solution.

When taking a closer look at the four (4) TimeStamp methods identified in X9.95, 100

one can readily see that most of the necessary TimeStamp artefacts are encodable

options, particularly, in the Cryptographic Message Syntax one can readily see that

most of the necessary TimeStamp artefacts are encodable options, particularly, in the

Cryptographic Message Syntax.101 This is also applicable to the certification

validation, paths and Certificate Revocation Lists CRLs) for digitally signed

TimeStamps, which are also optional encodings. CMS software development APIs,

like, Bouncy Castle’s Java-based crypto API, 102 may allow a developer to simply

exercise these options providing additional credence to X9.95 and placing it on an

equal footing with RFC-3161 in the LTANS ERS.

One solution may be the development libraries capable of performing the long-term

non-repudiation for digital signed documents in the context of document management

systems. This solution would rely on the IETF – LTANS group’s ERS. However, to

ensure long-term non-repudiation of signatures, especially those that did not conform

100 ANSX995] American National Standard for Financial Services, Trusted Timestamp Management and Security", ANSX X9.95- 2005, June 2005.

101 (RFC 3852) ASN.1 encoding

102 The Bouncy Castle Crypto package is a Java implementation of cryptographic algorithms, it was developed by the Legion of the Bouncy Castle

60

to any specific standard i.e., the European ISIS-MTT standard 103 would require some

extension of the ERS. This could be achieved by extending the model of the

Evidence Record simply by adding additional verification data as an additional file

represented by a hash value in the normal hash trees. This would be necessary

because an ERS would not be capable of providing the evidence required of digital

signatures that did not include a complete certificate path. At the time the evidence

record is generated it may not be possible to extend the renewed signature with the

missing certificates from the certificate path (the certificates field of a CMS-object in

a signed field) which are necessary for the non-repudiation proof. By integrating the

certificates in certificate path and the OCSP responses into the evidence record it may

be possible to exploit the data object group feature. This renewal of signed documents

may only be extended as follows if:

• Timestamp Renewal - Initial Renewal: Before a digital signature (CMS-

Object, ERS-Object,) is renewed a proof of its validity must be performed and

the data, a Revocation Info Archival [RIA] which consists of certificates and

OCSP responses, stored within the evidence record. For each certificate and

each OCSP the hash value is computed and the hash values are sorted and re

hashed. This new hash value can then be treated as an ordinary signed

document within a data object group.

• Hashtree Renewal: An RIA must be created for the latest signature. Once this

is done compute the hash value for each RIA of the evidence record, sort and

hash these hash values before integrating them together with the hash value of

the evidence record to form a hash tree using the data object group procedure. 103 The ISIS-MTT Specification is a interoperability standard for e-Government and e-Business applications that was developed by TeleTrust, a non-

profit organization for the promotion of trusted information and communication technology, in conjunction with T7, a non-profit Trustcentre Working

Group. TeleTrusT Deutschland e.V. was founded in 1989 to promote the security of information and communication technology in an open systems

environment.

61

• Validation: Within the validation of an evidence record the stored RIAs must

be used for all but the latest signature. To ensure their validity it is essential

that the hash value which appears in the first hash list of the "next" archive

time stamp meets the usual ERS terms.

Offering cryptographic choices for Evidence Record Syntax (ERS) “TimeStamps” as

a step toward future - proofing “TimeStamps” raises the question of how/where to

convey information necessary to verify interior timestamps in an EvidenceRecord.

A digitally signed TimeStamp does not necessarily resolve the need for an ERS,

which may be application specific, or an API which may offer a driver to try all

available Time Stamp Authorities. Unfortunately this process may be rather prone to

error as it raises the possibility of different timestamps over a single EvidenceRecord

which could be considered as not being an exactly efficient process.

Whilst it may not be possible to provide the perfect solution to all the problems

associated with long-term validation data within a Evidence Record Syntax (ERS) it

may however, be possible to add all the necessary verification data into the

timestamps used within the ERS. As timestamps are received from a TSA, it should

be possible to verify them and therefore the verification process should provide all

necessary data i.e. all certificates up to the root, and optionally an Online Certificate

Status Protocol (OCSP) or Certificate Revocation List (CRL). However, for the

verification to be possible, all necessary information needs to be allocated as close as

possible to the objects to be verified. 104 If this is not possible due to time constraints,

or limited availability of verification data, the approach set out in LTANS SCVP

104 In case of RFC3161 TS this is within the TS structure, in case of CMS this is within the CMS structure.

62

documentation105 should be used to handle this data. It should not lead to additional

general fields in the ERS to hold any necessary data.

The ANSI and ISO standards offer potential users of ERS for long term archiving a

number of choices for verifiable TimeStamps from an appropriate TSA, not all of

which would require PKI solutions. The ISO standards provide crypto logical

efficiency for a number of TimeStamp choices, including those offered in RFC3161

whilst the ANSI standard rather definitively suggests cryptographic resilience for

TimeStamp evidence seems to squarely place ERS as a PKI-only solution. Many

organizations depend upon these standards bodies to aid them in specifying correct

cryptographic choices.

6.5 The Use of Cryptography in Long Term Archives

The questions of problems in long-term storage, the usefulness of encryption

algorithms and requirements of “meta data” 106 are areas currently under investigation

by the LTANS group. The answers needed would be clear definition of techniques

needed to establish how any active server would handle and manage, over the long

term, this type of information, e.g. would the server send warnings when the

encryption algorithms or associated hashing mechanisms used become insecure over

time (5-30 years+), etc.?

There is also the question of how can systems administrators, managing a Long Term

Archive (LTA), be prevented from reading and disclosing information stored within

105 Using SCVP to Convey Long Term Evidence Records – draft ietf –ltans ers – scvp-00.txt

106 Meta data is data that expresses the context or relativity of data. Examples of meta data include data element descriptions, data type descriptions,

attribute/property descriptions, range/domain descriptions and process/method descriptions. The repository environment encompasses all corporate

meta data resources: database catalogues, data dictionaries and navigation services. Meta data includes name, length, valid values, and description of a

data element. Meta data is data that expresses the context or relativity of data. Examples of meta data include data element descriptions, data type

descriptions, attribute/property descriptions, range/domain descriptions and process/method descriptions. The repository environment encompasses all

corporate meta data resources: database catalogues, data dictionaries and navigation services. Meta data includes name, length, valid values, and

description of a data element.

63

the LTA? In this regard, since the concept of a totally powerful information system

“super-user” cannot be tolerated, such systems would need to be based around trusted

“Mandatory Access Control (MAC)” 107 based operating systems and related data

base structures.

On the question of confidentiality, would information decrease in importance over

time and, if so, would that data loose value over time? In relation to some legal

documents, the answer would be a firm “no”, e.g. land title details and documents,

which over time could be expected to actually increase in value. However, in marked

contrast, would be the situation of long term storage of scientific and technical

research papers and allied documents, where the value of the contents may rapidly

decrease as new research is undertaken and results obtained.

6.6. The Austrian Chamber of Notaries and Siemens CyberDOC

In 2001, the Austrian Chamber Notaries Public entered into a long-term partnership

with Siemens, one of the largest companies in Europe, and introduced the CyberDOC

system. Siemens guaranteed that with the CyberDOC system they could provide a

central electronic archive storage system which would be accessible into the future,

even though technology may change.

Shortly after the CyberDOC system had gone live in Austria, the Hungarian Chamber

of Notaries Public, 108 decided to follow the Austrian lead and adopt the CyberDOC

solution. In early January 2004, Hungary became the first country to follow Austria’s

lead in using a high-security solution to the archiving problem. The main difference

between the two countries was the factor of differing legal provisions, which required

a still higher volume of paper documents to be stored by Notaries in Hungary. In

107 In access control, a means of restricting access to objects based on the sensitivity (as represented by a label) of the information contained in the objects

and the formal authorizations (i.e, clearances) of subjects to access information of such sensitivity.

108 Magyar Országos Közjegyzöi Kamara (MOKK),

64

Austria, about 90,000 notarial documents are created every year, whilst in Hungary

the number is approximately 130,000 documents per year.

6.7. Conclusion

For overall security using cryptographic systems, it has to be noted that Cryptographic

Maintenance Policies change with time. Therefore, do time frames need to be

considered and procedures developed to maintain the desired degree of integrity as

cryptographic algorithms become insecure or obsolete, or new algorithms are

developed, especially when future Maintenance Policies will not be known at the time

of archiving? The maintenance policies would need to be as flexible as possible.

Such policies could become activated when, for example, cryptographic digital

certificates expire as well as when algorithms become insecure.

The development of strong cryptographic key management systems is essential, as

documents, needing to be accessed, will have to be made available under the same

cryptographic regime employed at the time of the documents’ creation or archiving.

Once archived, a notarized document has been decrypted the re-encryption or

encapsulating process will have to ensure that any encrypted shell structure not only

protects the original document but also any “electronic signatures” relevant to it..

This comes about since the cryptographic system used at the time of

archiving/document creation may have become obsolete and newer schemes may be

employed. However, at present, it is unclear precisely what form such decryption and

subsequent re-encryption will take.

If cryptographic systems are to be used then given the long term requirements for safe

and secure electronic documents and associated key variables, it is essential that any

cryptographic sub system employed meets appropriate tamper, resistance, reliability

and trust parameters. For example it would be appropriate for such sub systems to

65

meet the security requirements set out in the “US Federal Information Processing

Standard (FIPS) 140-2” or equivalent.

All legal and policy parameters relevant at the time of electronic document

notarization would need to be stored with the notarized document to ensure later

verification of the methodology used at the time of the original notarization,

particularly when the above decryption and re-encryption functions are involved. One

such solution may be the use of Mark-Up dialect languages based on schemes related

to XML, which would see the notarization, performed through extensions to

appropriate document mark-ups. Such a candidate could be the “Open Digital Rights

Language (ODRL).” 109

In addition to any technical problems which remain to be resolved, it will be much

more difficult to obtain cross border and cross jurisdiction acceptance from the

conservative traditional notary. One such forum which may provide a meeting place

where both associations may achieve acceptance of their proposals is the “Hague

Conference on Private International Law - International Forum on e-Notarization

and e-Apostilles”.

109 The Open Digital Rights Language (ODRL) is the proposed language for Digital Rights Management Digital Rights Management (DRM) involves the

description, layering, analysis, valuation, trading and monitoring of the rights over an enterprise's tangible and intangible assets. DRM covers the

digital management of rights - be they rights in a physical manifestation of a work (eg a book), or be they rights in a digital manifestation of a work

(eg an ebook). Current methods of managing, trading and protecting such assets are inefficient, proprietary, or else often require the information to be

wrapped or embedded in a physical format. A key feature of digitally managing rights will be the substantial increase in re-use of digital material on

the Internet as well as the increased efficiency for physical material. The pervasive Internet is changing the nature of distribution of digital media from

a passive one way flow (from Publisher to the End User) to a much more interactive cycle where creations are re-used, combined and extended ad

infinitum. At all stages, the rights need to be managed and honoured with trusted services. Current DRM technologies include languages for

describing the terms and conditions, tracking asset usages by enforcing controlled environments or encoded asset manifestations, and closed

architectures for the overall management of rights.

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C H A P T E R 7 7. THE ELECTRONIC NOTARY IN POLICY AND LAW

7.1. Introduction

The lawmakers in a number of jurisdictions, e.g., the United States, have attempted to

create an impression, which infers that it may be possible to notarize an electronic

document in a way that does not require the presence of a Notary. The suggestion has

been that the signer need only affix a Notary Service Electronic Certificate, i.e., a

digital certificate issued by a Notary. The document is then time stamped with an

electronic time stamp from an approved and trusted Time and Date Stamp Provider.

However, failure to recognize the time-honoured criterion of “personal appearance

before a Notary” has meant that the characteristics of a trusted notary and the "notarial

act" vary so much that any computer based notary service will have to meet a myriad

of individual concerns and requirements.

In failing to recognize this time-honoured criterion, lawmakers appear to continue to

erroneously assert that any use of a digital certificate as an overall part of the process

of creating and then verifying a digital signature incorporated into a document is the

equivalent to an appearance before, and notarization by, a Notary.

7.2. The Legislative Position in Australia and New Zealand

In Australia and New Zealand there has been no attempt to introduce legislation

dealing with “electronic or cyber” notary services at either a Federal or State level. In

response to a specific question in a questionnaire (see Appendix A ) from the Hague

Conference on Private International Law – International Forum on e–Notarization and

e–Apostilles, Australia’s Department of Foreign Affairs and Trade (DFAT) on the

matter of “Do you issue Apostilles for electronic documents?” the response from the

department was:

67

“We do not issue Apostilles for electronic documents. We would be happy to

explore this further, particularly if it provided a better service for customers

and could be implemented efficiently. We do, however, have reservations with

respect to the possibility of fraud.”

New Zealand’s response (see Appendix B) was similar to Australia’s:

“New Zealand has not issued Apostilles for electronic documents. To date,

the process has not been requested by any clients. New Zealand has not yet

considered the possibility of issuing Apostilles for electronic documents.”

7.3. The United States

In the United States, on the other hand, the “National Notaries Association” (NNA)

introduced the “Model Notary Act 2002” in which Article III, covering Chapters 14–

23, specifically deals with the “Electronic Notary. The Act, sponsored by the NNA,

in collaboration with Yale Law School, has been put forward as a comprehensive

statute prototype designed to modernize the office of the Notary Public. Article III

sets forth guidelines for e-notarization and the use of electronic signatures.

7.4. England and Wales

In the United Kingdom, the group “Notaries for E-Commerce” (NEC) 110formed the

opinion that PKI, which they saw as the only real solution to the question of

electronic notarial services, may be too difficult and too expensive to adopt. They

110 In November l999 Notaries for E-Commerce (NEC) was formed as a not-for-profit company for the sole purpose of undertaking an E-Commerce

Pilot Project for Notaries and in order to receive funds by way of donations from Notaries to enable it to proceed with the pilot. The Project was

independent but backed by the Notaries Society in England and Wales and also supported by the Society of Scrivener Notaries of London and by

Notaries in the Channel Islands. Its activities were complimentary to those of Cyber Notaries UK. A contract was signed with technology service

providers, Software Box Limited, for the managed installation and operation of a Baltimore uni-cert certification authority (CA) sited within a secure

environment and using PKI technology. The managed CA service was designed to register Notaries, issue X.509 certificates, revoke certificates and

cross certify with one other CA. NEC retained all procedural controls of the CA operation. Software Box provided dial in access to the CA service for

a number of individual Notaries, selected from across the country, subject to the user systems being stand alone, installed with MS Windows and MS

Outlook and having a specified minimum configuration of memory and disk space. Software Box also provided training and user support. The project

was launched on 8 November 2002. http://www.notaries.org.uk/page73/page1/page1.html cited 19th May 2005

68

http://www.notaries.org.uk/page73/page1/page1.html

saw a general reluctance by business organisations to accept the risks associated

with communicating across the internet.

Backed by the Notaries Society in England and Wales and supported by the Society

of Scrivener Notaries of London together with Notaries in the Channel Islands, NEC

embarked upon a project designed to show that secure electronic notarial services

were possible. NEC entered into a contract with technology service providers

Software Box Ltd who installed and managed the operations of a specific vendor’s

product set in this area, viz. the “Baltimore111 -Certification authority (CA)”

system, housed in a secure environment.

The research showed that:

• Whilst many notaries relied upon the internet and other electronic means of

communications in their day to day business operations when it came to

providing a notarial service they invariably reverted to the traditional paper

based form of documentation with pen and ink and legalised in hard copy.

Documents were dispatched by mail or courier.

• Many governments whilst beginning to use electronic communications for

their own purposes saw such electronic systems as a threat to security.

Strong encryption within a public key infrastructure system (PKI) provided

by trusted third parties was seen as a solution for open systems which needed

extra security.

111 This company is no longer operating.

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7.5. Legislation

In 1996, The United Nations Commission on International Trade Law

(UNCITRAL) introduced their Model Law on Electronic Commerce.112 This was

followed in 2001 with the UNCITRAL Model Law on Electronic Signatures.113

7.5.1. Electronic Transaction Act (1999)

In December 1999, the Australian Federal Government enacted legislation,

namely the Electronic Transaction Act (1999) (Cth) based on the United Nation’s

Commission (UNICTRAL) on International Trade Law’s Model Law on

Electronic Commerce. The Act was limited in that it covered only electronic

communications with the Commonwealth Government and was further restricted

to requirements under Commonwealth Statutes listed in regulations to the Act.

Australian states and Territories have since introduced State Acts that are similar

in their application to the Federal Act. This original act only applied to specific

transactions and associated legal instruments designated within the act. In 2001

the act was extended to all Commonwealth legislation stated in the schedule. The

New Zealand government also enacted similar legislation.

7.5.2. Uniform Electronic Transaction Act (1999)

In the United States “the Uniform Electronic Transactions Act (1999)” (UETA),

also based upon the UNICTRAL Model Law was introduced by the National

112 Adopted by UNCITRAL on 12 June 1996, the Model Law is intended to facilitate the use of modern means of communications and storage of

information. It is based on the establishment of a functional equivalent in electronic media for paper-based concepts such as "writing", "signature" and

"original". By providing standards by which the legal value of electronic messages can be assessed, the Model Law should play a significant role in

enhancing the use of paperless communication. The Model Law also contains rules for electronic commerce in specific areas, such as carriage of

goods. http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/1996Model.htmlIn 1996, cited August 2004.

113 Adopted by UNCITRAL on 5 July 2001, the Model Law aims at bringing additional legal certainty to the use of electronic signatures. Building on the

flexible principle contained in article 7 of the UNCITRAL Model Law on Electronic Commerce, it establishes criteria of technical reliability for the

equivalence between electronic and hand-written signatures. The Model Law follows a technology-neutral approach, which avoids favouring the use

of any specific technical product. The Model Law further establishes basic rules of conduct that may serve as guidelines for assessing possible

responsibilities and liabilities for the signatory, the relying party and trusted third parties intervening in the signature process.

http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/2001Model_signatures.html cited August 2004

70

Conference of Commissioners on Uniform State Laws. It differs from the

Australian legislation in that Section 11 of the Act114 sanctions a notary public to

act electronically, claiming to effectively remove the stamp and or seal

requirement normally associated with traditional notarial practice. However, the

authors of the Act have failed to elaborate on the Notary’s role in electronic

notarisation and, as a result; Section 11 of the Act does not eliminate any of the

other requirements of notarial law. Moreover, the authors noted that there was a

requirement to maintain the protections afforded by proper notarial procedures115,

and thus, in one sense, it is quite clear that the Act does not eliminate any of the

traditional requirements of normal notarial practice. It should be noted that within

the Act an electronic signature is given a wide definition and is defined as any

electronic sound, symbol, or process, attached to or logically associated with a

record and executed or adopted by a person with the intent to sign the record.116

114 ULA ELEC. TRANS. S11 (1999). SECTION 11. NOTARIZATION AND ACKNOWLEDGMENT. If a law requires a signature or record to be

notarized, acknowledged, verified, or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform

those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature

or record.

115 In the Official Comments to ULA ELEC. TRANS S11, Notaries Public are held to be the persons “authorized to perform” electronic acknowledgments.

116 ULA ELEC. TRANS. S (8) (1999). PROVISION OF INFORMATION IN WRITING; PRESENTATION OF RECORDS.

(a) If parties have agreed to conduct a transaction by electronic means and a law requires a person to provide, send, or deliver information in writing to

another person, the requirement is satisfied if the information is provided, sent, or delivered, as the case may be, in an electronic record capable of

retention by the recipient at the time of receipt. An electronic record is not capable of retention by the recipient if the sender or its information

processing system inhibits the ability of the recipient to print or store the electronic record.

(b) If a law other than this [Act] requires a record (i) to be posted or displayed in a certain manner, (ii) to be sent, communicated, or transmitted by a

specified method, or (iii) to contain information that is formatted in a certain manner, the following rules apply:

(1) The record must be posted or displayed in the manner specified in the other law.

(2) Except as otherwise provided in subsection (d)(2), the record must be sent, communicated, or transmitted by the method

specified in the other law.

(3) The record must contain the information formatted in the manner specified in the other law.

(c) If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record is not enforceable against the recipient.

(d) The requirements of this section may not be varied by agreement, but:

(1) to the extent a law other than this [Act] requires information to be provided, sent, or delivered in writing but permits that requirement to be varied by

agreement, the requirement under subsection (a) that the information be in the form of an electronic record capable of retention may also be varied by

agreement; and

(2) a requirement under a law other than this [Act] to send, communicate, or transmit a record by [first-class mail, postage prepaid] [regular United States

mail], may be varied by agreement to the extent permitted by the other law.

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7.5.3. United States Electronic Signatures and National Commerce Act

In 2000, the U.S. Congress passed the “Electronic Signatures in Global and

National Commerce Act (ESIGN)”. It represented an effort by the United States

Federal government to promote electronic transactions in interstate and

international commerce. The aim of the act has been to ensure that correctly

prepared electronic contracts, records, and signatures would have the same

validity and legal weight as those created on paper. It ensured validity and

enforceability of the qualifying statement in electronic form117, along with the

relevant signatures, witness statements, and notarized acknowledgements.

7.6. Conclusion

Across the world the characteristics of a trusted notary and their "notarial acts" vary so

that any computer based notary service has to meet a myriad of individual concerns

and requirements. There are ethical considerations that recognize the Notary’s unique

situation and underscore how necessary are the standards of conduct and practice

which support of professional responsibility, in short how to respond consistently to

ethical and practical situations while maintaining integrity. Some lawmakers are

creating a situation, which infers that it is possible to notarise an electronic document

in a way that doesn’t require the presence of a Notary. It could be suggested that a

client, when digitally signing a electronic document, would affix to that document, his

or hers relevant public key certificate. In summary this process envisages a

combining of the function of a RA with that of CA through the office of the relevant

notary.

Model Laws have no legal effect of their own. This is only achieved if they are

enacted in national laws. There are myriad of problems both legal and technical that

117 United States. Cong. Electronic Signatures in Global and National Commerce Act 106th Cong., 2nd sess. S-761.

72

surround the many key issues which must be resolved before the role of the notary

and what is expected of them when facilitating electronic commerce. However,

research needs to continue and the legal profession together with consumer

enforcement agencies, public and private consumer advocates, and academia must

continue to maintain vigilance and ensure legislators introduce appropriate legislation.

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C H A P T E R 8 8. CONCLUSIONS AND FUTURE RESEARCH

8.1. Conclusion

Many modern day notary publics see the electronic notarization process as being a

key legal requirement for many Internet based, high-value business and consumer

transactions which today's technology can offer. However, a lack of international

standards for effective electronic notarization technology, and associated products and

services, is seen by many civil and common law notaries as a major impediment to

their profession. Like the traditional paper-based process, electronic notarization will

have to meet a set of technical as well as legal requirements before it could be

accepted and considered valid and binding. Unfortunately the down side to this is that

some commentators on the subject of e-Notarization fail to recognise that any

adoption of inadequate electronic notary technology will jeopardize the integrity of

the entire process.

In this sense it is worth re-iterating the legal definition of a notary. This definition

can be quoted as follows:

“A notary public is a duly appointed officer whose public office it is, amongst

other matters, to draw, attest or certify, usually under his official seal, deeds

and other documents, including conveyances of real and personal property,

and powers of attorney relating to real and personal property situate in

England, or other countries of the Commonwealth, or in foreign countries; to

note or certify transactions relating to negotiable instruments; to prepare wills

or other testamentary documents; to draw up protests or other formal papers

relating to occurrences on the voyages of ships and their navigation as well as

the carriage of cargo in ships. His office, which is one of great antiquity, is

75

recognised in all civilised countries, and by the laws of nations as his acts

have credit every where (28 Halsbury’s Law (3rd Ed) 113, 114).118

Notaries are generally discussed in terms of two separate categories, i.e., those

operating under “Common Law” versus “Civil Law”. However, notaries in the

United States of America, with the exception of those in Louisiana, and to a lesser

extent Alabama and Florida, appear to form a third and distinct group. It may be

argued that the majority of notaries in the USA fail to meet the legal requirements for

appointment as a notary under both the “Common Law” and Civil Law”. These

matters are borne out by a description in a recent brochure of the National Notary

Association of America (NNA), which states as follows:

“Unlike the high-ranking notarios publicos of Latin America, the Notary

Public of the United States does not prepare immigration documents or hold a

highly prestigious position equivalent to that of a judge. The Notary is not an

attorney and may not prepare legal documents or give advice on immigration

or other legal matters (unless the Notary also happens to be a member of the

bar).”119

Literature on the profession of notaries in both the common law and the civil law

jurisdictions is sparse to say the least, and where it exists it is mainly written by and

for members of the profession and their associations.

Before taking into account the many issues posed by the introduction of technology

and how it may be implemented in a secure manner it is important to recognize the

important differences, both administrative and legal that divide the common law and

118 Saunders, J.B. (ed) “Words and Phrases Legally Defined” Standard Book Number for complete set of volumes: 406 08030 5, Butterworth & CO

(Publishers) LTD 1969

119 What is a Notary Public? -National Notary Association - Chatsworth, CA 91313-2402 - 2005 www.NationalNotary.org cited November 2005

76

http://www.nationalnotary.org/

civil law world. This may be particularly identified in differences between the

provenance of notaries in England and Wales, and their counterparts in Europe.

Whilst it is the differences in how these groups perform their duties, and how they are

recognized by their peers in the other jurisdictions, it is these same differences that

can be seen as being a major impediment to the realization of the “electronic notary”.

Indeed while the concept of an “electronic” or “cyber” notary has gained prominence

in the USA there has to be a firm response to these differences

With the development of the European Union (EU), notaries of the individual

countries of the EU have taken a much lower profile than professionals in other

branches of the legal profession. In England, the influence of civil law, and therefore

also of the role of the notary public, was marginalized in the middle ages. In 1533 the

Court of Faculties attached to the Archbishop of Canterbury, took over the

appointment of notaries. The mid-nineteenth century, saw a steady growth in

dominance of common law over Roman law, i.e. ecclesiastical courts and the Court of

Admiralty, culminating in the transfer of the jurisdiction of these courts to common

law courts.120

On the other hand the present day civil law or Latin Notariat are appointed by

governments on the basis of need and are described as public officers. Many are

suspicious of any plans to whittle down the strict regulations currently governing their

profession in their respective countries. They owe much of their present day

procedures to two forces:

• Firstly, the institution of the notary public which originated in ancient Rome,

and

120 The German Notariat and the European Challenge – International Journal of the Legal Profession, Vol. 10, No. 1, March 2003, pp. 37-54. Gisela

Shaw, Visiting Professor, University of the West of England, Bristol

77

• Secondly, to the French National Assembly, who on 16 March 1803

proclaimed that the law on the Notariat would be exported to those countries

either occupied by Napoleon or allied with him121.

Under the provisions of Article 50 of the Brussels Convention of 1968 on Jurisdiction

and Enforcement of Judgments in Civil and Commercial Matters on the question of

cross-national dealings, notarial documents retain the status they have in their country

of origin. A notarial document drawn up and registered in a civil law country is also

accorded probative force in the England & Wales and other Commonwealth countries.

However, in reverse the same cannot be said for a notarial document drawn up in

England & Wales in relation to civil law countries. This occurs because it does not

carry the status of a public document and thus cannot claim the appropriate status in a

civil law country.122

As a result some civil law jurisdictions have been inclined to reject notarial acts

certified by English notaries on the grounds that such acts would not be granted

authenticity status in that same country of issue, i.e., England and Wales.

A move to electronic notarization may mean that the Common Law form of Notary

i.e., the forms of England and Wales, Australia and other Commonwealth countries,

may fade and be replaced by the civil law form of notary. The future of the common

law notary as we know it today may be best summed up by the words of Professor

Gisela Shawn, Faculty of Languages and European Studies, Bristol University of the

West of England, Bristol, UK. In her paper “Notaries in England and Wales:

121 Napoleonic Code

122 Notaries in England and Wales: Modernizing a profession frozen in time. - Gisela Shaw Faculty of Languages and European Studies, Bristol

University of the West of England, Bristol, UK

78

Modernizing a Profession Frozen in Time”, 123 she contrasts the professional

differences between the “common law notary” of England and Wales, and as such the

Australian notary and those of other Commonwealth countries, with the “Latin or

Civil Law” notary of Europe.

It would appear that an e-notary service structure based on civil law experience may

be a “best-fit” solution. It has been noted that adoption of a civil law structure for

possible e-notary futures does involve some changes to those processes and

procedures used in the common law environment. In particular the civil law processes

involve retention of so called “original documents” by the notary. Electronic services

could be used to facilitate this process and to render it both technically and

economically feasible.

While this is a problematic solution it would appear to offer one of the more feasible

solutions to the problem on the following three basis:

a. growing wide spread adoption of broadband data communications services in

most developed countries,

123 In civil law jurisdictions, notaries represent one of the classical legal professions, alongside judges, prosecutors and practising lawyers. Although there

is no internationally accepted definition and their functions vary from country to country, they all are, broadly speaking, public officers whose

involvement is a statutory requirement in the context of a range of important legal transactions, such as company, intellectual property, inheritance and

real estate matters. Few legal transactions recorded in public registries can be effected without a notary’s intervention (Urquhart, 1990). On the other

hand, in most civil law countries, notaries (the so-called `Latin’ notaries) are also lawyers engaged in private practice in the context of non-contentious

civil law matters.

In contrast, notaries in common law countries represent a marginal profession in every respect (Basedow, 1991). In England, few people, even

lawyers and parliamentarians, have any idea what a notary is or does. The profession, which originated in ancient Rome, has had an unbroken

tradition in the English legal system from the late Middle Ages. However, over the last 150 years it has only just survived in the backwaters of legal

history - neglected, indeed, forgotten by the government and ignored by the bulk of the legal fraternity. It was only in the 1990s, in the context of

sweeping changes affecting all legal professions, that the notarial profession was faced with the challenge to modernise itself. It is still an open

question as to whether this modernisation process will result in strengthening or in crushing the profession.

Their survival beyond the next two decades is on the line. It will depend mainly on two issues: first, whether the status of notarial acts within the

English common law system is granted an upgrading in order to secure equal status with notarial acts from civil law countries; and secondly, whether

notarial certification is somehow built into electronic commerce dealings. Tied up with the latter is the highly controversial question of whether the

law applicable in electronic commerce transactions is to be the law of the recipient or the law of the provider, with solicitors arguing for the latter and

notaries having an obvious interest in supporting the case for the law of the recipient. The relatively laid-back approach, not to say indifference, of the

main body of solicitor notaries across the country regarding the future fate of the notarial profession, and the fact that their professional commitment

as well as livelihood are firmly tied to their being members of the Law Society, do not bode well for the future of the English Notariat outside London.

79

b. rapidly decreasing magnetic and allied storage costs, eg, one terabyte or one

million million bytes, of magnetic disc storage at a cost of less than US$500,

and

c. widespread adoption of public key cryptography hardware modules in

commodity level computers, telecommunication equipment and

mobile/portable devices.

The last factor makes truly feasible widespread, low cost adoption of digital signature

technology suitable for validation of “original” documents by notaries. While

identifying likely political and legal directions is problematic the above combination

of accepted legal practice with current well understood information and

communications technology appears to present the most feasible direction.

Whilst this is still a highly political and legal area of debate, irrespective of any form

of technology that may be used for these purposes, it introduces interesting

requirements for long term archive storage of necessary notarized instruments with

associated cryptographic functions and key management schemes capable of

surviving over a very long period of time. However, there appears to be a lack of

agreement on appropriate technical standards for these possible e-Notary services.

Firstly the differences between the Civil Law and Common Law notary structures

need to be acknowledged and catered for, particularly in relation to long term

document storage. Whatever solution is adopted it has to be international in scope.

There also appears to be reasonable evidence that there is still a role for an individual

or group of individuals to act as notaries i.e., human involvement could still be an

important element albeit in a different way to the past. Information and

communications products appear capable of being developed that may in the future

provide some form of notarial services. While in principle not being identical to the

80

original paper based schemes and while not being in the strict sense of the word a

“notary service”, a form of equivalent electronic notarial service may be possible.

81

APPENDIX A

This appendix contains a copy of the 2003 questionnaire relating to the Hague convention

of 5 October 1961 abolishing the requirement of legalisation for Foreign public

documents. http://www.hcch.net

83

Permanent Bureau | Bureau Permanent 6, Scheveningseweg 2517 KT The Hague | La Haye The Netherlands | Pays-Bas telephone | téléphone +31 (0)70 363 3303 fax | télécopieur +31 (0)70 360 4867 e-mail | courriel [email protected] website | site internet http://www.hcch.net

Légalisation / Preuves / Notification Legalisation / Evidence / Service Doc. prél. No 3 Prel. Doc. No 3 Août / August 2003

CONVENTION DE LA HAYE DU 5 OCTOBRE 1961 SUPPRIMANT L'EXIGENCE DE LA LÉGALISATION DES ACTES PUBLICS ÉTRANGERS

Explications succinctes en vue de la préparation de la Commission spéciale

établi par le Bureau Permanent

* * *

HAGUE CONVENTION OF 5 OCTOBER 1961 ABOLISHING THE REQUIREMENT OF LEGALISATION FOR FOREIGN PUBLIC DOCUMENTS

Succinct explanations in preparation of the Special Commission

drawn up by the Permanent Bureau

Document préliminaire No 3 d'août 2003 à l'intention de la Commission spéciale d'octobre / novembre 2003

Preliminary Document No 3 of August 2003

for the attention of the Special Commission of October / November 2003

CONVENTION DE LA HAYE DU 5 OCTOBRE 1961 SUPPRIMANT L'EXIGENCE DE LA LÉGALISATION DES ACTES PUBLICS ÉTRANGERS

Explications succinctes en vue de la préparation de la Commission spéciale


* * *

HAGUE CONVENTION OF 5 OCTOBER 1961 ABOLISHING THE REQUIREMENT OF LEGALISATION FOR FOREIGN PUBLIC DOCUMENTS

Succinct explanations in preparation of the Special Commission


3

TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................... 3

INTRODUCTION .......................................................................................... 4

I. SCOPE OF THE CONVENTION............................................................. 6

A. Public documents................................................................................. 6 1. Terminology........................................................................................ 6 2. Public documents to which the Convention applies ................................... 6 3. Public documents to which the Convention does not apply ........................ 7 4. The special case of diplomas ................................................................. 8

B. Executed in one Contracting State and which have to be produced in another Contracting State........................................................................................... 9

II. ISSUANCE OF THE APOSTILLE......................................................... 11

A. By a competent authority of the State of execution ................................ 11 1. Authority of the State of execution....................................................... 11 2. Authority designated by the State of execution...................................... 11

B. In the form of the model annexed........................................................ 12 1. Model annexed to the Convention ........................................................ 12 2. Consequence of the absence of signature.............................................. 13 3. Additional formality............................................................................ 13 4. Language used .................................................................................. 14

C. On the document or on an allonge ....................................................... 15

D. Register or card index ........................................................................ 15

III. APOSTILLE AND NEW TECHNOLOGIES ............................................ 17

A. Discussions in 1993............................................................................ 17 1. Form of signature .............................................................................. 17 2. Computerized register ........................................................................ 17

B. Renewed discussion ........................................................................... 18

ANNEX QUESTIONNAIRE.......................................................................... 19

4

INTRODUCTION

The Hague Convention of 5 October 1961 Abolishing the Requirement of

Legalisation for Foreign Public Documents ranks among the greatest successes of the Hague Conference on Private International Law, having obtained to date 79 ratifications and accessions on the five continents1. This is owing to the fact that the Convention provides a basic simplification of the series of formalities which complicated the utilization of public documents outside of the country from which they emanated. The Convention reduces all of the formalities of legalisation to the simple delivery of a certificate in a prescribed form, entitled "apostille", by the authorities of the State where the documents originates. It should be pointed out that the effects of the apostille are limited to attestation of 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.

The Convention does not serve only to lighten the task of the judges

before whom foreign documents are produced; it is also of the greatest importance for everyone who wishes to rely abroad on the facts set out in a document emanating from the authorities of his own country. Thus the Convention has proved to be very useful for those countries, such as Japan and Sweden, which in their own systems of law do not have the practice of requiring legalisation, since their citizens must, in the absence of the Convention, submit to foreign requirements each time when they wish to utilise their own countries’ documents abroad, before the authorities or the courts of a foreign State.

Nevertheless, roughly 40 years have elapsed since that Convention was

adopted, and certain technical developments, and likewise changes in practice, justify the need to examine its operation in practice2. That is the assignment that the forthcoming Special Commission on the practical operation of the Hague Convention of 5 October 1961 Abolishing the Requirements of Legalisation for Foreign Public Documents, to be held in The Hague from 28 October to 4 November 2003, will strive to fulfil. This paper has been drafted in order to prepare for that Special Commission effectively.

First, the practical importance of this Convention justifies a reminder of

certain points of essential importance for its implementation. In particular, it seems appropriate to apply a measure of exposition to the determination of its scope (I), in order next to review the procedure for issuance of apostilles itself and to provide certain explanations of a strictly "practical" nature (II). It will be necessary then to consider the impact of the use of new technologies (III). This report repeats some of the comments3 by Mr. Yvon Loussouarn in his Explanatory Report4, to which have been added other developments in order to reflect in the best possible manner the evolution of the practice in this area. 1 For a complete list of ratifications and accessions of the Convention, see the Hague Conference's

website, at www.hcch.net. 2 The Convention's operation had already been reviewed summarily at the Special Commission of

January 1988 (see Proceedings of the Sixteenth Session, Vol. I, p. 186 and p. 194-202), and at the Seventeenth Session (see Proceedings of the Seventeenth Session, Vol. I, p. 218, 290 and 331-332).

3 The comments drawn from the Explanatory Report have been "grayed" in the body of the document in order to replace the use of quotation marks.

4 Explanatory report by Mr. Yvon Loussouarn, in Actes et documents de la Neuvième session, Tome II, Legalisation, p. 181; hereinafter the "Explanatory Report".

5

Throughout these developments, the Permanent Bureau has entered a few

questions, which are repeated in the annex and constitute a Questionnaire that the States party to the Convention are invited to answer in order to assist the Permanent Bureau in preparing the forthcoming Special Commission. This is why we would be grateful for your sending them to us at the latest by 10 October 2003, by electronic mail at the following addresses: [email protected] and [email protected] .

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I. Scope of the Convention

Article 1 determines the scope of the Convention as to the documents to which it applies. Accordingly, under Article 1(1), the documents subject to the Convention need to comply with two concurrent conditions. They must be, first, public documents (A) as defined by the Convention, and second, 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 (B).

A. Public documents

1. Terminology

First of all, it should be stressed that the drafters of the Convention wavered between the terms actes publics (public documents) and documents officiels (official documents). The preference which was finally shown for the former expression can be explained by the aim in view. All the Delegates were in agreement that legalisation should be abolished for all documents other than documents signed by persons in their private capacity (sous seing privé). The expression documents officiels would only partly have conveyed this idea. It would have been too narrow since notarial acts cannot be considered to be official documents. The words actes publics were preferred as they have the advantage of removing all doubt and conveying the security inherent in a well-known, not to say classic, category in French legal terminology. Besides, the risk of confusion arising out of the use of the word actes seemed, after all, illusory. True the word actes is ambivalent to the extent that it covers both the negotium and the instrumentum. However, there is no doubt that as we are dealing with a Convention on legalisation only the second meaning can apply. The fact that the qualifier public is attached to the word actes only serves to strengthen this conviction. In order to avoid any translation difficulties the drafters, moreover, specified that in the English text of the Convention the word actes should be translated by documents.

2. Public documents to which the Convention applies

Since they wished to determine the scope of the Convention as precisely as possible, the drafters of the Convention were not content simply with using a generic term; in Article 1 they listed the documents which are to be considered as public documents within the meaning of this Convention. The documents have been split into four categories as set out under points (a) to (d) of Article 1(2).

a) Documents emanating from an authority, or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process-server

The drafters of the Convention felt that the expression juridiction (courts or tribunals) should be understood in its wider meaning and should apply not only to judicial courts and tribunals but also to administrative and constitutional tribunals and even to ecclesiastical courts.

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b) Administrative documents

c) Notarial acts

d) Official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures

It is important to stress that the text does not refer to the actual documents signed by persons acting in their private capacity but solely the official certificates which may accompany them. As the distinction may seem obscure to the uninitiated, the drafters of the Convention felt it wise to give a few examples by way of explanation (official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures), although this is by no means intended as an exhaustive list.

It needs to be stressed that the apostille applies to the official certificate

and not directly to the private document having received an official certificate. This is why the practice of certain competent authorities, tending to require translation of the private document when it is drafted in a foreign language, is not justified: the certification concerns only the official certificate; the competent authority accordingly needs only to ascertain the authenticity of the signature of the notary or official having drafted that certificate, the capacity in which he or she signed the certificate, and if applicable, the identity of the seal affixed by the latter.

3. Public documents to which the Convention does not apply

Article 1(3) also helps to determine the scope of the Convention by excluding two categories of public documents5, namely:

a) Documents executed by diplomatic or consular agents

A special problem is in fact raised by documents executed by a consul in his country of office where he also acts as a notary of his own country. Thus, a document executed in Italy by a French consul is a foreign document, as far as the Italian authorities are concerned, just as a document executed in France by a French notary would be. It seemed inappropriate to apply the rules of the Convention to such documents, as it would have necessitated sending the document executed by the consul to his country of origin in order that it should receive its certificate and then returning it to the country where it was produced. For this reason it would have been inappropriate to subject documents executed by diplomatic or consular agents to the rules of the Convention6. 5 The Brussels Convention of 25 May 1987 abolishing the legalisation of documents in Member

States of the European Community has a broader scope than The Hague Convention as it covers all public documents. Nevertheless due to a lack of ratifications, this Convention has not entered into force.

6 It should be noted that taking into account this exclusion from the scope of the Hague Convention, the Council of Europe has drafted a European Convention dated of 5 June 1968 abolishing the legalisation of documents executed by diplomatic or consular agents. This Convention entered into force the 14 August 1970. 20 States have ratified or acceded to it. It would be helpful if States Party to this Convention would report on their experience with this treaty.

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b) Administrative documents dealing directly with commercial or customs operations

This exclusion is justified by the fact that such documents are currently given favoured treatment in the majority of countries. However, it was only accepted after lengthy debate. The question was whether to make an exception to this exclusion and to bring within the scope of the Convention certificates of origin and import/export licences. It was finally decided not to do so for two reasons. First, it would have been pointless to apply the Convention to them as they are more often than not exempt from legalisation. Second, in cases where a formality is required, it is not a question of legalisation but of an authentication of the content implying that there has been a physical check made by the competent authority. Last, it was pointed out that import and export licences are most often used in the country in which they were issued.

The drafters nonetheless wanted to avoid the exclusion, once accepted,

being given too general a meaning. The qualifier "administrative" shows that commercial documents such as contracts and powers of attorney are subject to the rules of the Convention. Moreover, the adverb "directly" tends to restrict the exclusion solely to documents whose very content shows that they are intended for commercial or customs operations, thus excluding those which may occasionally be used for commercial operations such as certificates issued by the Patent Offices (authenticated copies, documents certifying additions to patents, etc.).

4. The special case of diplomas

It appears that application of the Convention is commonly asserted by persons wishing to have their diplomas certified, in particular when seeking employment abroad: the Permanent Bureau has received various enquiries in this respect, including some relating to so-called "on-line" diplomas issued over the Internet. Can diplomas be treated as public documents and accordingly enjoy the exemption from legalisation7?

In order to determine whether diplomas are within the scope of the

Convention, a distinction should be made between diplomas issued by an institution that is public or treated as such in the State of issuance, and diplomas issued by a private institution: under Article 1 of the Convention, only the former may be treated as public documents (Art. 1(a) and (b)) and receive an apostille. For the others, the apostille may be issued only to certify the signature and capacity of the notary (Art. 1(c)) or to certify the signature and capacity of the signatory of a copy, for instance (Art. 1(d)).

7 Application of the Convention to on-line diplomas also raises the issue of the territorial location of

the institution having issued those documents: see infra p. 11.

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It should also be pointed out that an apostille affixed directly or on an allonge attached to a diploma in no way confers any legal recognition of the diploma abroad. The apostille does not mean that the diploma is to be recognized ipso jure by any State Party to the Convention. The apostille merely certifies "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 the document bears" (Art. 5(2)). It also exempts from the formality of legalisation (Art. 2).

QUESTION 1. In practice, what are the kinds of public documents (e.g., commercial documents, birth certificates) for which the competent authority(ies) in your State is (are) most commonly called upon to issue apostilles?

QUESTION 2. Do you have statistics at your disposal with respect to the number of apostilles issued by your competent authorities (by type of document, if possible)?

B. Executed in one Contracting State and which have to be produced in another Contracting State

It should be pointed out that the phrase "Contracting State" used in the Convention refers to any State in which the Convention has become effective (i.e., any State Party to the Convention). Under Article 1(1), the Convention applies to public documents which, first, have been executed in the territory of one Contracting State, and second, have to be produced on the territory of another Contracting State. The Convention is therefore based on a principle of reciprocity.

The Permanent Bureau has received a request to determine whether the

Convention was applicable to documents issued by institutions of the European Community and produced on the territory of a Contracting State. A reply in the negative may have to be adopted since the European Community is not a party to the Convention. This solution applies mutatis mutandis to any international organisations of which authorities or organs are competent to issue documents falling under the scope of the Convention.

QUESTION 3. Pursuant to the application by the European Community for membership of the Hague Conference, it will have to be determined to what extent the Hague Conventions, and in particular the "Apostille" Convention, should or could be extended to regional economic-integration organizations. Do you consider that it would be necessary or appropriate to adopt a protocol favouring the adoption of a clause similar to that of Article 18 of The Hague Convention on the law applicable to certain rights in respect of securities held with an intermediary?

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Unlike the vast majority of Hague Conventions adopted subsequently, the "Apostille" Convention contains no provision enabling a State with several territorial units to make a declaration resulting in the application of this Convention to all its territorial units or only to one or several of them.

QUESTION 4. Would you be in favour of the adoption of a protocol designed to enable a State with several units to extend the application of the Convention to one or several of its territorial units?

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II. Issuance of the apostille

A. By a competent authority of the State of execution

1. Authority of the State of execution

The particular feature of the system created is that the apostille is issued not by an authority of the State of the document's production (i.e., of the State in the territory of which the foreign public document is to be produced), but by an authority of the State of execution (i.e., of the State from which the public document emanates). This solution seemed the more appropriate and is intended to prevent fraud: the authority of the State from which the document emanates is in practice in the better position to determine whether the signatory of the document is connected with that State and whether the document submitted is a public document for the purposes of the Convention. This solution accordingly avoids the need for the authority in the State of production to perform time-consuming enquiries. The advantage of such a system is demonstrated, for instance, in the case of on-line diplomas mentioned above: the authority of the State of execution is in a better position to determine whether it is a public document for the purposes of the Convention and whether the institution which issued the diploma is indeed located on its territory (even though the territorial location of an "on-line institution" is not always easy to determine).

It should be pointed out that this does not remove all powers of

appreciation from the State of production: the Explanatory Report specifies that if the certificate has been affixed in error upon a document which is outside the scope of the Convention […], the certificate could not […] have the quality of transforming the nature of the document and making it a public document if it is in reality a document signed in a private capacity. The State where the document is produced thus retains the right of showing that it is not in fact a public document within the meaning of the law of the country from whence it comes. As this goes without saying, the drafters of the Convention deemed it unnecessary to mention it expressly8.

Costs for issuance of the apostille: the Explanatory Report9 specifies that

this issue was not included in the Convention as it appeared to be a matter of internal organization for each State. The delegates agreed, however, to accept that this cost ought to be "reasonable": if it were to be higher than that of the former legalisation, the Convention would lose much of its point.

QUESTION 5. Can you specify the price charged by the competent authorities in your country for issuance of the apostille?

2. Authority designated by the State of execution

It is up to each Contracting State to determine itself the authorities to which it intends to entrust issuance of the apostille (Art. 6). The designation and any change in the designation of such authorities should be notified to the 8 Explanatory Report, op. cit., p. 182 (16). 9 Explanatory Report, op. cit., p. 183 (17).

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depositary of the Convention (i.e., the Ministry of Foreign Affairs of the Netherlands). Only an authority designated by the Contracting State as being competent is permitted to issue the apostille. No other authority may claim that competence. It is essential, therefore, to ascertain that the apostille has indeed been issued by a competent authority. In the case of the on-line diplomas mentioned above, it needs to be pointed out that affixing of the apostille for the purposes of the Convention may not in any way be performed by the academic institution or any other private agency, since it is not an authority designated as being competent to issue the apostille by the State on the territory of which it is located, in accordance with Article 6 of the Convention.

Since designation of the competent authority is a matter solely for the

State on the territory of which a document is executed, each State may designate a different authority in that capacity. Since any State Party to the Convention is required to abide by the designation, by the State of execution, of the competent authority, it follows that the State of production may not refuse an apostille on the grounds only that an authority equivalent to that having issued it would not be authorized to issue the apostille on its territory. A contrary solution would be inconsistent with the objective of simplicity sought by the drafters of the Convention and would result in making issuance of an apostille subject to different requirements according to the State where the document is to be produced.

B. In the form of the model annexed

1. Model annexed to the Convention

Articles 4 and 5 of the Convention deal with the certificate. In this field the most important innovation is without doubt the provision laying down a uniform formality in all countries bound by the Convention. To this end, Article 4 creates a common certificate to be used by the authorities designated by the various Signatory States and of which a model is annexed to the Convention. The apostille must include a number of uniform and numbered items. The Explanatory Report further points out that a review of that model shows that the apostille appears in the form of a square with sides at least 9 centimeters long. The objective of this formalism is to simplify and facilitate the international circulation of public documents. The Permanent Bureau is of the view, however, that a pragmatic rather than a formalistic approach should be adopted in order not to detract from the Convention's effectiveness, provided that the apostille can be clearly identified as such. This is why it was desired in particular that the apostille should contain an express reference to the Convention, thereby containing in itself proof of its lineage.

QUESTION 6. In practice, have you encountered difficulties connected with the formal requirements provided for under the Convention?

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2. Consequence of the absence of signature

The apostille must bear in particular the "signature, seal or stamp" of the authority having issued it. The aim here is to allow a prompt ascertainment of the competence and identity of the authority having issued the apostille. What solution is to be applied if, for instance, there is no signature?

A strict reading of Article 5(2) leads to an admission that the apostille is

not "properly filled in". The Convention does not, however, provide as to the "validity" or otherwise of the apostille. In addition, Article 5(3) clearly states that the drafters did not intend to subject the certificate itself to a requirement of additional proof such as legalisation or even verification by another authority10.

Accordingly, if the apostille is incomplete and raises a doubt, a verification

should be carried out with the competent authority of the State where the document originates and if necessary, a check of the entry of the apostille in the register or card index kept by the issuing authority, in accordance with Article 7 of the Convention. If, after inspection of the register or card index, a doubt remains as to the authenticity of the apostille, the State in which the document is produced may refuse to recognize the authenticity of the signature, the capacity in which the signatory of the public document acted, or the identity of the seal or stamp which the public document bears (Art. 5(3)). If, on the other hand, inspection of the register or card index removed any doubt as to authenticity of the apostille, it seems that the State of production ought to recognize the effects normally attaching to a "properly filled in" apostille (Art. 5(3)).

The formalism required by the Convention is intended to simplify and

facilitate the circulation of public documents. An excessively strict construction of its terms might have the opposite effect. It follows that the apostille system is based on a principle of trust in the competent authority in the State of execution. As long as that trust is not disputed, the effects provided for under the Convention ought to apply.

3. Additional formality

It appears that certain States Party require, for the issuance of apostilles by their authorities, the performance of an additional formality such as the affixing of a ribbon or wax seal. This finding calls for several comments.

First, even though the text of the Convention does not prohibit making

issuance of the apostille subject to the performance of additional formalities, it should be recalled that the Convention's objective is to be less cumbersome than the procedure attaching to legalisation. In addition, performance of this kind of additional formalities may run up against the growing use of new technologies.

Next, may a Contracting State refuse recognition of the effects usually

recognized for an apostille produced on its territory, on the grounds that the apostille, even though properly filled in by the State of execution in accordance with the Convention, does not exactly comply with the form used by the State of production for its own apostilles? The text of the Convention contains no provisions expressly permitting or censuring such behaviour. The Explanatory 10 Explanatory Report, op. cit., p. 181 (15).

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Report specified, however, that the addition of the certificate is the maximum formality which may be required. It cannot be duplicated by an additional formality11. Even though it is not certain that the author of the report was thinking specifically of the case where issuance of the apostille itself required an additional formality, it appears from the very structure of the Convention that any State Party to the Convention agrees to exempt from legalisation any public document produced in its territory and bearing the apostille properly filled in, in accordance with the Convention. Accordingly, even if the apostille issued by another Contracting State, contains no ribbon or wax seal (or any other additional formality applied by the State of production for apostilles delivered by its own authorities), the effect described under Articles 3 (exemption from legalisation) and 5(2) (certification of authenticity of the signature, the capacity of the signatory and the identity of the seal or stamp) cannot be denied for that reason only.

4. Language used

The following observations may be deduced from the model apostille annexed to the Convention and Article 4(2), regarding the languages used to draft the apostille:

Title: in French only Standard terms:

either in French or in English or in the official language of the issuing authority or in English and in French or in the official language and in French (*) or in the official language and in English (*) or in the official language and in another language (*) (**)

Entries added by the authority:

either in French (***) or in English (***) or in the official language of the issuing authority (***).

(*) Although Article 4(2) refers to a second language only, it seems reasonable to accept that a third language can be added if the Contracting State so wishes. (**) The use of another language is optional and does not replace use of the first language12. (***) Translation of the entries added by the authority, in another language, does not seem to be contrary to the Convention. However, the apostille is to be considered as complying with the Convention provided that the entries have been added by the authority in French, in English or in the authority's official language.

11 Explanatory Report, op. cit., p. 180 (14). 12 Nevertheless, the use of standard forms of apostille makes it easier to comply with the provisions

of the Convention.

15

From a strictly practical point of view, when it has been decided to enter the items of the apostille in two different languages, it may be useful to enter the items in the official language in bold type, and to place the translation into the language selected in lighter type beneath them. For instance, in a country where the official language is Spanish and having chosen to provide a translation of the items into English:

1. Pais : ........ Country:........ Uniformity in terms of language is in any event preserved to some extent

by the requirement of a mention in the French language of the title "APOSTILLE (Convention de La Haye du ...)".

C. On the document or on an allonge

Article 4(1) requires the apostille to be placed on the document or on an "allonge" (extension). The Convention provides no details and therefore allows the States Party full discretion to find the means that seems to them most appropriate and most convenient to affix the apostille. The apostille may therefore be placed directly on the public document to be certified or on an allonge, which as the name implies is a piece of paper attached to the document. The affixing itself raises a few issues of a strictly practical nature, in particular when the document certified by the apostille has several pages. It seems that certain States "dog-ear" and fan the document's pages so that the apostille can thereby be physically attached to all the pages of the document. Other States use adhesive paper.

QUESTION 7. Practical information relating to the methods used to affix the apostille would be very useful. In particular, how do you proceed when the public document to receive the apostille has several pages?

D. Register or card index

For the system to be sufficiently protective, it remained to establish some supervision making it possible to detect false information or false signatures which might be placed upon the certificate and, in particular, to facilitate proof of non-authenticity of the certificate.

Under the terms of Article 7 of the Convention: “Each of the authorities designated in accordance with Article 6 shall keep

a register or card index in which it shall record the certificates issued, specifying: a) the number and date of the certificate, b) the name of the person signing the public document and the capacity in

which he has acted, or in the case of unsigned documents, the name of the authority which has affixed the seal or stamp.

At the request of any interested person, the authority which has issued the certificate shall verify whether the particulars in the certificate correspond with those in the register or card index”.

16

It is thus the authority which is responsible for the issue of the certificate, which the Convention entrusts with the exercise of the necessary supervision. That the certificate is numbered and that the number is recorded in the register, makes identification easy. It was difficult to find a system more effective in its simplicity.

The text of Article 7 calls for a twofold observation : - For the organisation of supervision, each State has a choice between

using a register or a card index, this latter more modern form providing a comparable security.

- Where the public document is both signed and provided with a seal or stamp, an indication of the signature and of the authority which has issued the seal or stamp both appear on the certificate. But to avoid overloading the register or card index, it is felt sufficient to mention on the latter the name of the person signing and the capacity in which he has acted. This is sufficient for the supervision to be effectively exercised. Where however an unsigned document is concerned, the register or card index must give the name of the authority which has affixed the seal or stamp, for this indication constitutes the only reference enabling the document to be identified. It seemed pointless to require in the Convention that he who applies for verification should prove the legitimate nature of the interest claimed by him. It seemed that the risk of inappropriate curiosity was not to be feared since in order to know the entries on the certificate and demand their verification it was necessary to have had access to the document.

QUESTION 8. Is consultation of the register or card index for verification requested frequently?

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III. Apostille and new technologies

The issue of adaptability of the "Apostille" Convention's provisions had already arisen in 1993; it deserves, however, to be considered anew having regard to the considerable developments in new technologies over the past decade.

A. Discussions in 1993

In the early 1990s, the Permanent Bureau received a few enquiries from certain States Party to the Convention calling for clarification as to the proper interpretation of certain provisions of the Convention in respect of the use of new technologies. The Permanent Bureau drafted a brief memorandum to report on these issues13 and a questionnaire was sent to the States Party to the Convention in 1993 and a summary of the replies was drafted14.

1. Form of signature

Faced with the growing inflow of applications for apostilles, it was legitimate to ask whether the signature and/or affixing of a stamp or seal can be performed mechanically, by means of a stamp or even, having regard to technical evolution, electronically. The Permanent Bureau stated in 1992 that "the proliferation of certificates issued under the Convention pleads for practicality in interpretation of the "signature" requirement" and that "the operation of this very useful Convention should not be impeded by undue formalism in its interpretation". It pointed out, however, that access to the official stamp or seal or a multicopying or electronic signing machine should be subject to supervision15.

2. Computerized register

In 1992, the Permanent Bureau found that the expansion of electronic registers was not contemplated at the time when the Convention was drafted in 1960, but the terms of "register or card index" used ought to be sufficiently broad to cover this functional replacement of the paper register. "However, special provisions may have to be taken in order to prevent erasure of or tampering with information contained in the data bank; perhaps a back-up "authentic" version should be kept on a separate disk"16.

It appears from the replies obtained to the 1993 Questionnaire that "the

use of electronic (computerized) databanks for keeping the "register or card index" called for under Article 7 of the Convention is accepted by a narrow majority of the States which have replied." The Permanent Bureau concluded, however, that the "circumstances allow a statement that "pressures on the archival systems of the States Party to the Convention, as a result of the continuing issuance of certificates (apostilles) without the option to destroy the

13 Note on certain questions concerning the operation of The Hague Convention of 5 October 1961

Abolishing the Requirement of Legalisation of Foreign Public Documents, Prel. Doc. No 13 of May 1992, in Proceedings of the Seventeenth Session, Vol. I, Part 1, p. 218, hereinafter "Note of May 1992".

14 Summary and synthesis of replies to the Questionnaire on The Hague Convention of 5 October 1961 on Legalisation, Prel. Doc. No 23 of May 1993, in Proceedings of the Seventeenth Session, Vol. I, Part 1, p. 290 et seq., hereinafter "Summary of replies of May 1993".

15 Note of May 1992, prec.. 16 Note of May 1992, prec.

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records, will militate in favour of initiating electronic record-keeping systems, at least for certificates issued in the future"17.

B. Renewed discussion

The ten replies or so to the 1993 Questionnaire obtained can no longer be considered as reflecting significantly the current systems for the affixing of apostilles: the past decade has seen considerable evolution in favour of the use of new technologies. The use of electronic transmissions is no longer considered as a future development but is an integral part of current thinking. In fact, certain competent authorities already have significant experience in the use of electronic transmissions for the issuance of apostilles. Even though the text of the Convention and the Explanatory Report do not answer these questions, the absence of a provision to the contrary and the fairly broad terminology used in the Convention seem sufficient to encompass these evolutions and to allow the issuance of electronic apostilles provided that a paper copy can be produced at any time.

This issue will require particular attention, however, at the next Special

Commission on the practical operation of this Convention. For this purpose, it would be useful for the States Party to answer the following questions concerning the use of electronic files for the recording of apostilles, and the acceptance or otherwise of electronic signatures on apostilles.

Last, the issue of the electronic form of the signature on the apostille

raises in practice another more difficult issue, which is whether the Convention allows the issuance of apostilles for documents existing or recorded electronically.

QUESTION 9. Do you use signatures by mechanical means, stamp and/or electronics, to fill in apostilles? If so, have security measures been taken to avoid any fraud? If so, which?

QUESTION 10. Do you use an electronic medium to keep the "register or card index" provided for under Article 7 of the Convention? If so, do you also keep a paper copy of the entries and if not, do you contemplate doing so? What are your reasons?

QUESTION 11. Do you issue apostilles for electronic documents? If so, can you provide us with details of the manner of that issuance and if not, do you think this possibility can be contemplated?

17 Summary of replies of May 1993, prec.

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ANNEX

QUESTIONNAIRE

QUESTION 1. In practice, what are the kinds of public documents (e.g.,

commercial documents, birth certificates) for which the competent authority(ies) in your State is (are) most commonly called upon to issue apostilles?.............. 9

QUESTION 2. Do you have statistics at your disposal with respect to the number

of apostilles issued by your competent authorities (by type of document, if possible)? ............................................................................................. 9

QUESTION 3. Pursuant to the application by the European Community for

membership of the Hague Conference, it will have to be determined to what extent the Hague Conventions, and in particular the "Apostille" Convention, should or could be extended to regional economic-integration organizations. Do you consider that it would be necessary or appropriate to adopt a protocol favouring the adoption of a clause similar to that of Article 18 of The Hague Convention on the law applicable to certain rights in respect of securities held with an intermediary?................................................................................ 9

QUESTION 4. Would you be in favour of the adoption of a protocol designed to

enable a State with several units to extend the application of the Convention to one or several of its territorial units? ......................................................... 10

QUESTION 5. Can you specify the price charged by the competent authorities in

your country for issuance of the apostille?.................................................. 11 QUESTION 6. In practice, have you encountered difficulties connected with the

formal requirements provided for under the Convention? ............................. 12 QUESTION 7. Practical information relating to the methods used to affix the

apostille would be very useful. In particular, how do you proceed when the public document to receive the apostille has several pages? ......................... 15

QUESTION 8. Is consultation of the register or card index for verification

requested frequently?.............................................................................. 16 QUESTION 9. Do you use signatures by mechanical means, stamp and/or

electronics, to fill in apostilles? If so, have security measures been taken to avoid any fraud? If so, which? .................................................................. 18

QUESTION 10. Do you use an electronic medium to keep the "register or card

index" provided for under Article 7 of the Convention? If so, do you also keep a paper copy of the entries and if not, do you contemplate doing so? What are your reasons?......................................................................................... 18

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QUESTION 11. Do you issue apostilles for electronic documents? If so, can you provide us with details of the manner of that issuance and if not, do you think this possibility can be contemplated?......................................................... 18

APPENDIX B

This appendix contains a synopsis of the replies to the questionnaire accompanying the

Succinct explanations relating to the Hague convention of 5 October 1961 abolishing

the requirement of legalisation for Foreign public documents. http://www.hcch.net

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Permanent Bureau | Bureau Permanent 6, Scheveningseweg 2517 KT The Hague | La Haye The Netherlands | Pays-Bas telephone | téléphone +31 (0)70 363 3303 fax | télécopieur +31 (0)70 360 4867 e-mail | courriel [email protected] website | site internet http://www.hcch.net

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5 OCTOBRE 1961 SUPPRIMANT L'EXIGENCE DE LA LÉGALISATION DES ACTES PUBLICS ÉTRANGERS (Doc. prél. No 3)


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SYNOPSIS OF THE REPLIES TO THE QUESTIONNAIRE ACCOMPANYING THE SUCCINCT EXPLANATIONS RELATING TO THE HAGUE CONVENTION OF

5 OCTOBER 1961 ABOLISHING THE REQUIREMENT OF LEGALISATION FOR FOREIGN PUBLIC DOCUMENTS (Prel. Doc. No 3)


Document préliminaire No 6 (version définitive) à l'intention de la Commission spéciale d'octobre / novembre 2003

Preliminary Document No 6 (final version)

for the attention of the Special Commission of October / November 2003

APERÇU DES RÉPONSES AU QUESTIONNAIRE ACCOMPAGNANT LES EXPLICATIONS SUCCINCTES RELATIVES À LA CONVENTION DE LA HAYE DU

5 OCTOBRE 1961 SUPPRIMANT L'EXIGENCE DE LA LÉGALISATION DES ACTES PUBLICS ÉTRANGERS (Doc. prél. No 3)


* * *

SYNOPSIS OF THE REPLIES TO THE QUESTIONNAIRE ACCOMPANYING THE SUCCINCT EXPLANATIONS RELATING TO THE HAGUE CONVENTION OF

5 OCTOBER 1961 ABOLISHING THE REQUIREMENT OF LEGALISATION FOR FOREIGN PUBLIC DOCUMENTS (Prel. Doc. No 3)


Synopsis Replies Questionnaire Apostille - 19-Dec-03 Page 3 of 20

Aperçu des réponses au Questionnaire accompagnant les explications succinctes relatives à

la Convention de La Haye du 5 octobre 1961 supprimant l'exigence de la légalisation des actes publics étrangers (Doc. prél. No 3)

Synopsis of the replies to the Questionnaire accompanying the succinct explanations relating to

the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Prel. Doc. No 3)

Afin d’éviter tout contresens, les réponses sont reproduites ci-dessous dans leurs langue et présentation originales

(suppressions ou corrections indiquées par des crochets [] – texte en caractères gras sélectionné par le BP). Les réponses complètes sont disponibles sur le site Internet de la Conférence (www.hcch.net - sous « Travaux en cours »).

In order to avoid any misrepresentation, the replies are reproduced below in their original form and language

(withdrawals or corrections indicated by brackets [] – text in bold selected by PB). The full replies are available on the Conference’s website (www.hcch.net - under “Work in progress”).

Question Réponse / Reply Etat / State

1. Docs for which Apostilles are mainly issued

Apostilles are mainly issued in conjunction with notary documents (e.g. sales contracts), commercial register and nautical vessel registry extracts, translations, certificates on the status of a person (birth, marriage and death), judgments (particularly in cases of divorce) and deeds, and – although somewhat less common – school and university diplomas.

Allemagne

Birth, death and marriage certificates, decrees nisi and educational documents. Australie

Most frequently commercial documents drawn up by a public notary are presented in order to request the issuance of an apostille. Very often the competent authorities are also called upon to issue apostilles for documents granting power of attorney legalized by a notary.

Autriche

Apostilles issued by the Ministry of Justice relate to: - all documents issued by the Courts – judgements, sentences, writs of execution, rulings, injunctions, certificates, etc. - all documents issued by the Notary’s Offices – notarizings of signatures and dates, notarial attestations of copies of documents, notarial acts, notarizings of deals contracted, etc. - certificates related to Bulgarian citizenship – for acquiring Bulgarian citizenship, for release from Bulgarian citizenship, for the existence of Bulgarian citizenship, for the absence of Bulgarian citizenship, etc. Apostilles issued by the Ministry of Foreign Affairs relate to : - documents of civil status – birth certificates, marriage certificates, certificates of marital status, certificates of address registration, etc. - documents issued by schools – diplomas, certificates, academic transcripts, other certificates, etc. - all other documents issued or certified by state authorities – ministries, administrations, agencies, offices, incl. those issued by Prosecutor's Offices, by the Prosecutor General and by the Supreme Prosecutor's Office.

Bulgarie

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1) Documents bearing the true signature of an official party such as a Hongkong SAR Government recognized officer: a) Birth and Death Certificate; b) Marriage Certificate; c) Certificate of Absence of Marriage Record; d) Declaration; e) Business Registration Certificate; f) Certificate of Incorporation; g) Certificate of Registered Particulars. 2) Documents signed by a notary public in Hongkong: a) Power of Attorney; b) Certified true copy.

Chine (Hongkong)

The kinds of public documents for which the MSAR competent authorities are most commonly called upon to issue apostilles are birth certificates, marriage certificates, translation certificates and procurations / powers of attorney.

Chine (Macao)

The public documents which are most frequently called upon to issue apostilles are birth certificates, certificates, report cards and diplomas of high school, college and specialized studies as well as judicial and police certificates (criminal record).

Colombie

Apostilles are commonly issued for various documents related to adoption cases, for commercial documents, for official documents related to vital statistics, and for court records, land records, school documents, and patent applications. Etats-Unis

Local register offices as the competent authorities are most commonly asked to issue apostilles for commercial documents and documents related to international adoption. Finlande

Les types d’actes publics pour lesquels sont délivrées des apostilles sont principalement : - des actes d’état civil - des actes notariés (attestations, actes de notoriété, procurations, testaments, donations) - des actes administratifs (avis d’imposition, attestation de droits sociaux, diplômes et relevés de notes scolaires et universitaires, des certificats de scolarité …) - des actes judiciaires (certificats de non-appel de décision, jugements, extraits de casier judiciaire) - des actes commerciaux (listes d’ingrédients de produits, factures, sessions, extraits « Kbis » du registre du commerce, contrats commerciaux …) - des traductions correspondant d’actes apostillés. La plupart des Parquets généraux des cours d’appel ont souligné la forte proportion de demandes reçues concernant des pièces réunies afin de constituer des dossiers en vue d’une adoption à l’étranger (agréments, compte rendu DDASS rapports psychologiques, copie de passeport, de carte d’identité, attestation d’emploi…).

France

The competent Greek authorities for the issuance of apostilles (i.e. the local Prefecture for public documents issued by the Prefecture authorities, the local District for any other public documents and the local Court of First Instance for judicial documents, pursuant to the relevant Greek legislation – Law 1497/1984 as amended) are most commonly called upon to issue apostilles for certificates by municipalities and other public authorities, regarding public documents, court decisions and relevant judicial certificates, regarding judicial documents.

Grèce

In Hungary, two authorities have the right to issue Apostilles: the Ministry of Justice (hereinafter: MOJ) certifies public documents emanating from judicial authorities (mostly court and notarial documents) and the Ministry of Foreign Affairs (hereinafter: MFA) certifies public documents emanating from other authorities. The MOJ is mostly requested to certify private documents certified by a notary (commercial contracts, powers of attorney) or certificates on extracts of the registry of companies. The MFA is most frequently called upon to issue Apostilles on birth certificates, certificates from the register of citizens’ personal data and addresses, certificates issued by the clerk of the local municipalities, university and college degrees. Both Ministries may issue Apostilles to certify the authenticity of the signature and stamp of the Hungarian Office for Translation and Attestation Company (which has the right to prepare authentic translations) in case the translation was made of a public document which itself could be certified by Apostille.

Hongrie

(a) documents signed by persons in their private capacity authenticated by the notary public (e.g., commercial documents) (b) certificates of birth, marriage, death, etc. including family registers (c) certificates of graduation.

Japon

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New Zealand is most commonly called upon to issue apostille certificates for broadly two categories of documents: (i) Personal documents to be used by individuals for a specific purpose such as marriage abroad/application for citizenship: including birth certificates, marriage certificates, certificates of no impediment, certificates of search, divorce certificates, adoption certificates. (ii) Commercial documents to be used to facilitate the sale of goods abroad or the purchase of goods from abroad: including certificates of incorporation, certificates of free trade etc.

Nouvelle-Zélande

Legal practice informs that each year the apostille is used hunderds of time to legalise commercial documents like invoices, bills of sale, etc. As to its use in case of other kinds of documents.

Pays-Bas

From a sample taken last year we identified that the top two reasons for apostille requests were notarial acts on trade documents (for example powers of attorney) and verifying signatures on birth certificates.

Royaume-Uni

Our designated authorities are called upon to issue apostilles on both commercial documents and official certificates. Contracts for real estate transactions abroad and power of attorneys are mentioned quite frequently when we are talking about commercial documents. Birth certificates and other public documents issued by the Swedish tax Authorities are also very common.

Suède

In practice, the kind of public documents for which we are most commonly called upon to issue apostilles are commercial documents and recently birth certificates.

Portugal

Les actes notariés (statuts, procurations, certificats etc.) et les actes commerciaux (extraits du registre du commerce, contrats, procurations, factures etc.) semblent être plus nombreux que les actes d’état civil (actes de mariage, naissance, divorce, adoption, décès etc.). Dans certains cantons, c’est toutefois l’inverse. Des apostilles sont aussi délivrées pour des diplômes de fin d’étude, des jugements, voire pour des analyses techniques et des attestations diverses. La Chancellerie fédérale quant à elle est amenée à délivrer des apostilles surtout pour des actes notariés et des documents émanant d‘Ambassades, des extraits du casier judiciaire et des documents émanant d’institutions fédérales.

Suisse

Swaziland has not issued apostilles for any public document as yet. It is true that Swaziland declared herself bound by the Convention twenty five years ago. However, lack of resources has delayed the application process, in particular, the designation of an authority and provision of facilities for issuance of an apostille. Your assistance in this regard would be greatly appreciated. Furthermore, there has not been a request by any person or State Party to the Convention to issue an apostille. The current authentication system is apparently satisfactory to the states of production since there has not been request for an apostille. Had this requirement arisen, Swaziland would have accordingly made means within its capabilities to apply the apostille Convention.

Swaziland

2. Statistical info?

Among the 22 states reporting, 347,654 apostilles were issued last year. Numbers range from 400 apostilles per year in North Dakota to 64,400 per year in California. The U.S. Department of State issued 5,580 apostilles during the fiscal year October 1, 2002 – September 30, 2003. Information is not available about numbers by type of document.

Etats-Unis

On average, fifteen hundred (1.500) apostilles are issued daily [PB: equals approx. 360'000 per year]. Colombie

Les éléments statistiques communiqués par les Parquets généraux des cours d’appel sont repris en annexe [voir les réponses complètes sur le site web de la Conférence / see the full replies on the Conference’s website]. Ils mettent en évidence une forte augmentation du nombre des apostilles délivrées au cours de ces dernières années. Cependant, le ministère de la justice ne dispose pas de statistiques globales pour la France quant au nombre d’apostilles délivrées par les autorités compétentes. Exemple / example - Cour d’appel de Paris : 105.849 entre le 1e janv. 2003 et le 7 oct. 2003

France

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Plus de 100 000 apostilles par an réparties en quatre catégories : - procédures d’adoption à hauteur de 1/3 ( soit 33 000 par an) - les photocopies de diplômes à hauteur de 1/4 (soit 25000 par an) - les actes commerciaux à hauteur de 1/4 (soit 25 000 par an) - autres : à hauteur de 1/6 (soit 17 000 par an).

At the Ministry of Justice: At the Ministry of Foreign Affairs Total for Bulgaria : For 2002: 61,089 For 2002: 132,023 For 2002 - 193,112 For 2003: 50,147 For 2003: 111,623 For 2003 - 161,770 Total: 111,236 Total: 243,646 Total: 354,882

Bulgarie

We record the numbers of legalisation certificates issued but they are not broken down by type of document. [In previous communications, the PB has been informed hat the competent authority for the UK issues approx. 660 apostilles per day, i.e. approx. 158,400 per year.]

Royaume-Uni

Nous ne disposons pas de statistique nationale regroupant le nombre d’apostilles par type de documents délivrées par chacune des autorités cantonales. Le nombre d’apostilles diffère fortement d’un canton à l’autre. Si le canton de Genève, du fait de sa position internationale, délivre en moyenne près de 25'000 apostilles par année, ou le canton du Tessin 16'500, les cantons de taille moyenne tels que celui d‘Argovie, de Neuchâtel, de Soleure ou du Valais en délivrent entre 1‘000 et 2‘500 et les petits cantons tels que celui d‘Obwald une centaine d’apostilles par année. La Chancellerie fédérale délivre par an environ 1'500 apostilles. Le total des apostilles délivrées en Suisse par année doit dès lors avoisiner les 100'000.

Suisse

There are 37 local register offices in Finland, of which the Helsinki office is the largest. Helsinki local register office issued 13 049 apostilles in year 2002. That is approximately half of the number in the whole country (25 000 – 30 000). Finland does not have exhaustive data from the whole country. During the same year, the Ministry of Foreign Affairs legalised approximately 6 000 documents.

Finlande

The total number of apostilles issued in the financial year 2002 (2002.4.1-2003.3.31) is 30,716. Japon

We do not have any statistical data on the number of apostilles issued in Germany. However, the number must be considerable and increasing. In order to serve as an example, a mid-sized regional court (in Oldenburg) was selected. Over the past 5 years, registrations were filed as follows: 1998: 266 cases (221 notary certificates, 29 register extracts, real estate deeds and the like, 12 translations) 1999: 307 cases (251 notary certificates, 41 register extracts etc., 15 translations) 2000: 340 cases (293 notary certificates, 38 register extracts etc., 9 translations) 2001: 426 cases (354 notary certificates, 63 register extracts etc., 9 translations) 2002: 525 cases (453 notary certificates, 66 register extracts etc., 6 translations) 2003: As of 22 August: 376 cases, which is already 20 more than 2002 during the same time period. The aforementioned cases often involve more than one certificate per case. E.g. in 2002, of 525 cases, 768 certificates were attached with apostilles. In Rhineland-Palatinate (Rheinland-Pfalz), e.g. the President of the eight regional courts issues a total of approx. 4800 apostilles annually.

Allemagne

We provide the statistics with respect to the number of apostilles issued in the last three previous years: 2000 – 16 660 2001 – 16 144 2002 – 16 357

Portugal

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15,890 in the 2002-03 Australian financial year (July 2002-June 2003). Australie

Year 2002 – 6 077 apostilles Year 2003 (January – August) – 4 367 apostilles There is no record by type of document.

Chine (Hongkong)

There are statistics available, which are however not itemised with regard to the type of document. In Austria 16 regional courts are competent for the issuance of apostilles with regard to judicial or notarial documents. Administrative documents are certified by the competent Chief Executive Office in each of the 9 provinces of Austria. For example, in 2002 within the circuit of the Vienna Regional Court (competent for the issuance of apostilles with regard to all judicial and notarial documents produced within the Viennese area) 3.757 apostilles were issued. Within the same period the Vienna Chief Executive Office (competent for the issu-ance of apostilles with regard to administrative documents produced within the Viennese area) issued 536 apostilles.

Autriche

For judicial documents, the Court of First Instance of Athens, which is the largest Court of First Instance in the country, issued circa 350 apostilles in 2002 (from which around 200 documents were certificates, around 100 documents were court decisions and around 50 documents were various judicial documents). For public Documents, the District of Attica, district of the capital city of Athens, issued, in 2002, approx. 3.500 apostilles (from which circa 2.000 were certificates by municipalities). From January until the end of September 2003, the District of Attica has issued over 4.000 apostilles.

Grèce

The MOJ has statistics only on the number of all legalizations (both Apostilles and the „traditional” legalization of judicial documents where further diplomatic legalization is necessary). This total number was 892 in 2002 and 923 in 2003 until 15 October. The number of Apostilles is about 80% of the total. The MFA issued 2328 Apostille in 2003 until 30 June (the total number of all certificates was 4180 in this period).

Hongrie

New Zealand began to issue apostille certificates on 22 November 2001: Year 1 (22 November 2001 – 30 June 2002) – 1,199 certificates were issued Year 2 (1 July 2002 – 30 June 2003) – 2,436 certificates were issued Year 3 (1 July 2003 – 30 August 2003) – 739 certificates have been issued to date.

Nouvelle-Zélande

2000: 69; 2001: 80; 2002: 114; 2003 (January-August): 83. Chine (Macao)

Statistics unknown. Practitioners seem to be very satisfied with this Convention. Pays-Bas

0 Swaziland

We do not have statistics at our disposal for all the designated authorities. Suède

3. Protocol re Reg Econ Int Org (see Art. 18 Secu-rities Conv)?

The question as to whether an international organisation such as the European Union should become a party to the Hague Convention of 1961 and in what form existing treaties on this should be concluded can only be discussed in the context of the general question of the European Commission’s becoming a member of the [HccH]. Reference is made in this respect to Germany’s observations which have already been submitted.

Allemagne

We consider that Article 18 of the Hague 'Securities' Convention is an appropriate (but not necessary) starting point for negotiating a provision on EC membership. However, we reserve our position on the issue of the EC's membership fees and voting rights. Another precedent - for the definition of a REIO - that might be worth looking at is found in the UN Framework Convention on Climate Change: "an organization constituted by sovereign States of a given region which has competence in respect of matters governed by this Convention or its protocols and has been duly authorized, in accordance with its internal procedures, to sign, ratify, accept, approve or accede to the instruments concerned" (Art 2).

Australie

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The adoption of a protocol favouring the adoption of a clause allowing an accession of regional economic-integration organizations, which have competence over matters governed by the "Apostille-Convention", to this legal instrument is in line with the position already taken in previous negotiations within the Hague Conference. No objections are raised with regard to the introduction of a similar clause concerning the "Apostille" Convention.

Autriche

Bulgaria supports the extension of the application of the "Apostille" Convention in respect of the regional economic-integration organizations through a protocol of adoption of a clause similar to that of Article 18 of The Hague Convention on the law applicable to certain rights in respect of securities held with an intermediary.

Bulgarie

Such a clause will enable documents issued by the EC to be covered by the Convention and further facilitate the circulation of EC documents outside the EC. Therefore we do not have any objection to adopting a protocol introducing a clause similar to Article 18 of the Indirectly Held Securities Convention.

Chine (Hongkong)

There would be no problem for the MSAR in the adoption of such a clause. In any event, it is considered that the question of the extension of the Convention – and other Hague Conventions - to regional economic-integration organizations should be addressed in abstract and not specifically regarding the European Community. On the other hand, it is premature to pose the question of the need of a Protocol intended specifically for this question – even though such a clause is considered useful – as, in the context of the revision of the practical operation of the Hague Conventions on Service, Taking of Evidence and Apostille, there may be the need for other amendments which require the adoption of a Protocol.

Chine (Macao)

We have no view on the question of a possible protocol permitting regional economic integration organizations to become party to the Convention. We are unaware of the specific reasons for which the European Union might seek such a protocol. The question of preparing protocols for existing conventions should be considered on a convention-by-convention basis.

Etats-Unis

Finland considers the adoption of such a clause appropriate. Finlande

We consider it would be appropriate to adopt such a Protocol following the transfer of competence by the Member States to the European Union over matters governed by this Convention.

Portugal

L’article 18 de la Convention de La Haye sur la loi applicable à certains droits sur des titres détenus auprès d'un intermédiaire vise à permettre à la Communauté européenne d’être partie à une Convention multilatérale qui touche à des matières pour lesquelles les États membres lui ont transféré leurs compétences. Une telle clause a une valeur pédagogique certaine pour les États tiers en ce qu’elle précise et explique l’épineuse question du partage des compétences entre d’une part, la Communauté et, d’autre part, les États membres. Faut il pour autant envisager sa généralisation ? Celle-ci, - en premier lieu, viderait en grande partie de sa substance, le débat sur l’adhésion de la Communauté à la Conférence de La Haye, la Communauté se voyant reconnaître la possibilité de devenir partie des futurs instruments envisagés au cas par cas, - en second lieu, pourrait constituer un frein à la politique de communautarisation du droit international privé, dont la norme élaborée dans l’enceinte multilatérale que constitue la Conférence de la Haye, et sera ensuite proposée à la Communauté pour que cette dernière la fasse sienne. Cette question, porteuse d’un enjeu politique important qui concerne la Communauté, ne peut à notre sens donner lieu à une réponse qui ne soit préalablement concertée avec nos partenaires européens.

France

It would be useful to include a clause similar to that of Article 18 of the Hague Convention on the law applicable to certain rights in respect of securities held with an intermediary, enabling regional economic-integration organizations to participate in the Apostille Convention. In particular, participation by the European Community is essential regarding the issuance of apostilles for Community documents.

Grèce

As EU institutions play an increasing role we would be in favour of a protocol allowing the EU’s accession to the Convention. Hongrie

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We do not have an opinion about whether it would be appropriate to adopt such a protocol. However it should be necessary to adopt such a protocol in order that the Hague Conventions apply to regional economic-integration organizations. In addition, we consider it necessary, in practice, to familiarize the matters of which competence has been transferred to the organization to public as well as to notify it to the depositary.

Japon

New Zealand is open to considering this possibility, but would want more information about the practical implications of how this would work in the context of this Convention.

Nouvelle-Zélande

A clause similar to Article 18 is needed. Pays-Bas

What exactly is meant by "Regional economic integration organisations" and what signatures would we need to verify. Royaume-Uni

Before giving our final position on this issue we would like to hear more about the need for the European Community to be covered by the rules.

Suède

La nécessité dépend aussi de la pratique. Quels sont les cas de figure dans lesquels une apostille a été exigée pour un acte émanant d’institutions de la CE (tel que, par exemple, un jugement de la Cour européenne), sans pouvoir être attribué à un Etat contractant? Par qui les apostilles ont-elles été délivrées dans ces cas-là? En admettant la nécessité pratique d’une extension de la Convention Apostille aux actes des institutions de la CE et dans l’hypothèse où la CE serait admise comme membre de la Conférence de la Haye, il faudra trouver une solution propre et spécifique à la Convention Apostille. Il s’agira alors en effet de permettre aux institutions de la CE de délivrer une apostille pour des actes publics rédigés par elles, indépendamment de tous les actes rédigés par les Etats contractants.

Suisse

Yes. Swaziland

4. Protocol re Multi-unit States?

Currently, the Convention applies to Hongkong and Macao within China, but not the rest of China, even though there are no express provisions in the Convention enabling a State with several units to extend the application of the Convention to one or more of its territorial unit. The adoption of a protocol to this effect will serve to confirm the current practice and provide a firm legal basis for continuing that practice. For the above reasons, we are in favour of adopting such a protocol.

Chine (Hongkong)

Please refer to the preceding answer in what concerns the adoption of a Protocol. In any case, the adoption of a specific provision on this question would be very useful.

Chine (Macao)

Un tel Protocole permettrait aux autres États parties de connaître avec précision la véritable portée de leur engagement vis à vis des États à plusieurs unités territoriales, ce qui est loin d’être le cas à l’heure actuelle, à défaut de clauses spécifiques les concernant. Il clarifierait ainsi la question du champ d’application territorial de l’instrument au sein d’un État fédéral, ce qui ne peut qu’être facteur d’amélioration.

France

Art. 13 of the Convention enables a Contracting Party to extend its application to all the territories, to which the Party is liable in the international relations. The adoption of a protocol designed to enable a State consisting of several units to extend the application of the Convention to one or several territorial units would extend to a considerable degree the field of application of the Convention and would contribute to achieving the aims of the Convention.

Bulgarie

In principle, New Zealand would be supportive of such a measure on the basis that it increases coverage of the Convention.

Nouvelle-Zélande

A federal clause could be of use. Pays-Bas

Yes. This option would enhance the proper application of the Convention in that the Apostille would be issued by the most appropriate authority (the territorial unit’s authority), in cases of States with several territorial units.

Grèce

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most appropriate authority (the territorial unit’s authority), in cases of States with several territorial units.

We have no objection against such a protocol if that enables States with more territorial units to become party to the Convention and the use of Apostille would be even more widespread.

Hongrie

Yes. Swaziland

Our preliminary position is that we would not be against looking into the possibility for States with several territorial units to make a declaration resulting in the application of this Convention to all its territorial units or only to one or several of them.

Suède

Dans la mesure où l’art. 13 de la Convention n’est pas suffisant pour régler ce point et que des Etats contractants y montrent un intérêt, la Suisse n’y verrait pas d’inconvénient.

Suisse

While we do not necessarily oppose the application of the Convention to one or several territorial units of a State, we have concerns about the possibility that such application raises the difficulty on applicants and the competent authorities in practice.

Japon

We would not oppose the adoption of a protocol designed to enable a State with several units to extend the application of the Convention to one or several of its territorial units, however, its relevance could be questioned since the Convention already provides for that possibility under article 13.

Portugal

The necessity is not seen to adopt a protocol which is designed to enable a State to extend the application of the Convention to only a portion of its territory. However, if such a desire is voiced on the part of other States, this is not fundamentally objected to.

Allemagne

It is difficult to reply to the question about a possible protocol to permit application of the Convention to one of more national territorial units in a country. We are aware that Canada would find it easier to accede to the Convention on a province-by-province basis, and currently it is not a party. We are not aware, however, of any request by Canada or some other state member of the Hague Conference for such a protocol.

Etats-Unis

We note that Article 29 of the Vienna Convention on the Law of Treaties states that unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory. We reserve our position on the substance of this issue.

Australie

To restrict the application of the Convention to one or several units of a State could render the cross-border utilisation of documents, which have to be certified in accordance with the rules of the Hague Convention more difficult and cumbersome. In order to ensure clarity with regard to the precise territories to which the Convention applies, the list of member States would have to indicate in detail the area of application. In special cases it might be difficult to determine whether the place where the apostille was issued (or has to be issued) is situated within this area.

Autriche

Taking into consideration aspects of costs, logistics, security and trustworthiness of the documents, it is considered relevant to maintain the issuance of the apostille in only one national unit.

Colombie

What exactly is meant by "Territorial units". Royaume-Uni

5. Fees for an Apostille?

La délivrance de l’apostille est effectuée gratuitement. Chine (Macao), France, Japon

We do not charge, at present, any price for issuance of apostilles, however, the possibility of it becoming a paid service is being evaluated given the high costs involved.

Portugal

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For public documents there is no charge for the issuance of apostilles (by the local District or Prefecture). For judicial documents, there is a charge of 0,50 Euros by the Court of First Instance.

Grèce

The amounts and the ways of payment of the fees at both authorities empowered to issue the apostille are different. At the Ministry of Justice, pursuant to Tariff No 1 to the Stamp Duty Act, the fees charged by the Courts, the Prosecutor's Offices, the Investigation Offices and the Ministry of Justice are at the amount of BGN 2.50 per document [PB: € 1.28; US$1.51; Yen 164.6737]. No fee is provided for urgent services, as the service is done for maximum 24 hours. The payment is to be done via bank transfer. At the Ministry of Foreign Affairs, pursuant to Tariff No 3, the fees charged for Consular services in the system of the Ministry of Foreign Affairs under the Stamp Duty Act are at the amount of BGN 5.00 [PB: € 2.56; US$ 3.03; Yen 329.3474] for ordinary service of up to three working days, and BGN 7.50 for urgent service [PB: € 3.85; US$ 4.54; Yen 494.0211] of up to 8 working hours. The payment is to be done by state tax stamps. In conclusion, we have to emphasize that the fees indicated above are absolutely reasonable because they are quite low.

Bulgarie

The price charged by the Austrian competent regional courts for the issuance of the apostille with regard to judicial and notarial documents is 2,90 €. The Vienna Chief Executive Office charges 16,27 €.

Autriche

The price of the apostille is twenty thousand pesos ($20.000), equivalent to approximately seven US dollars (USD$7). Colombie

An Apostille costs 8 €. Finlande

The price of an Apostille issued by the MOJ is 2,000 Hungarian Forints (about 8 €). The MFA requires the payment of the general consular fees for the certification of an official’s signature and seal which is the equivalent of USD 20.

Hongrie

Apostille-costs are 13 euro. Pays-Bas

Fees range in the states from $2.00 (Alaska) to $25.00 (New Jersey). The two states that charge $25.00 reduce the amount for adoption cases. The U.S. Department of State charges $6.00.

Etats-Unis

Hongkong$125 (around US$16) per apostille. Chine (Hongkong)

$60 Australian per apostille. Australie

Fees for the issuance of apostilles are governed under numbers 100 and 101 of the fee schedule of the annex to section 2(1) of the Judicial Administration Regulation (Justizverwaltungskostenordnung). They are set on the basis of the value of the certificate. The costs incurred by the applicant are between a minimum of € 10 and a maximum of € 130. On average, the fees amount to between € 10 and € 20.

Allemagne

Les prix oscillent entre 15.- et 30.- francs suisses, soit entre 10 et 20 € environ, à quelques exceptions près (Valais 6 francs 60, Argovie 40 francs).

Suisse

The fee for legalisation is £12.00 [PB: € 16.9219; US$19.9644; Yen 2169.2319]. Royaume-Uni

NZ $ 40.00 + Goods and Services Tax = NZ $ 45.00 [PB: € 22.8795; US$26.99; Yen 2932.9516]. Nouvelle-Zélande

The average cost for issuance of the apostille could be estimated to SEK 250 (approx. 27 € ), VAT included. But there are examples of authorities not charging more than SEK 60 (approx 7 € ) for an apostille. Also some authorities charge per hour and thus the costs will depend on the complexity of the work related to issuing an apostille. The average cost per hour would be SEK 1200 (approx. 130 euro).

Suède

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Since apostilles are not issued, no price is charged. Swaziland

6. Practical difficulties re for-mal requirements of Apostille?

No difficulties / Aucune difficulté

Autriche, Bulgarie, Chine (Hongkong), Colombie,

Finlande, France, Grèce, Japon,

Nouvelle-Zélande, Pays-Bas, Portugal,

Royaume-Uni

The vast majority of our designated authorities have not encountered any difficulties connected with the formal requirements provided for under the Convention. Some authorities have found it difficult to determine if a document is a public document to which the Convention applies.

Suède

The main difficulty we have confronted relates to what can be considered a public document. Australie

For a long time the Hungarian authorities had issued Apostilles on which the standard terms were only in Hungarian and French. With the growing demand for the use of English a three-language form was created in the MOJ, taking of course into account the requirements of the Convention with regard to the size of the Apostille. No other problems have been encountered concerning the formal requirements. The MFA has not yet introduced a three-language version of the Apostille.

Hongrie

Non. Un seul canton ainsi que la Chancellerie fédérale déplore le fait que certains Etats n’accepteraient pas les apostilles rédigées en allemand, pourtant l’une des langues officielles en Suisse, et ce à l’encontre de la teneur de l’article 4 de la Convention.

Suisse

German agencies have reported the following difficulties in the application of the Convention: a) Translation of apostilles In individual cases, foreign consulates and applicants have reported that German agencies have required a translation of not only the document concerned, but also the apostille itself (costs to be borne by the applicant). The reason was apparently that it could otherwise only be ascertained with difficulty whether the apostille had been issued by the competent foreign authority. The respective areas of business are then informed by the competent federal ministries that the translation of an apostille itself cannot be required, as long as there are no specific indications of forgery. b) Recognisability of the issuing German apostille authority According to the German declaration, for court documents, the president of the respectively competent regional or local court is authorised to issue apostilles. In individual cases, foreign authorities who were presented with the document did not accept it at first, if instead of the president the vice president or his deputy signed the apostille. This would appear to be incorrect. Definitions of respective court presidents differs according to domestic law. This means that, under courts constitutional law, deputising is permissible. The respective court president is first deputised by the vice president, and in his absence, by the most senior judge. Therefore there is no cause for alarm if it is not the court president himself, but rather his respective deputies who sign the apostille. c) Requirement of legislation In individual cases it has been reported that a foreign agency has required legislation instead of an apostille for certain documents, although the State presenting the documents is a party to the Convention. This procedure seems unjustified and has been objected to via diplomatic channels. d) Documents which have been produced and signed automatically or electronically. See question 11.

Allemagne

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Although, in practice, the MSAR authorities have not encountered any difficulties with the formal requirements provided for under the Convention, they would be much in favour of the simplification of such requirements, in particular of the possibility of using more sophisticated and secure means, including electronic means of communication.

Chine (Macao)

We have not encountered difficulties with apostilles issued by the Department of State, which are still prepared by traditional methods, but apostilles issued by the state secretary of state offices are sometimes arbitrarily rejected by foreign authorities. U.S. states, which are under tremendous budget constraints, are increasingly modernizing and making more efficient their operations. This leads inevitably to the use of computer-generated apostilles, seals, and signatures. Apostilles are typically attached by staple. Although the formal requirements of the convention are still met thereby, some foreign judicial and administrative authorities have rejected these apostilles, which has caused considerable distress to applicants for marriage, adoption, property transactions, etc.

Etats-Unis

7. Prac info re affixing Apostille, in part., multi-page docs

Apostilles are printed on a piece of paper whose size is regulated according to the German industry norm, i.e. a DIN A 4 sheet, and is affixed to the certificate with paste. Seals are affixed at the points of attachment. Documents comprising several pages often no longer need to be additionally affixed with an apostille, since the document has already been affixed by the notary, the translator or the court.

Allemagne

The apostille is placed either on the back of the document by a rubber stamp or computer generated image or, where there are several pages, these are bound and the apostille is placed on a covering sheet.

Australie

A public document to receive the apostille should be stitched together inextricably by the authority executing the public document. The apostille will then either be placed on the document itself (at the last page) or on an "allonge".

Autriche

The apostille, by which the documents are certified is an attachment to the document, and the text should be in English (at the Ministry of Foreign Affairs), or is affixed on the document itself and the text is in Bulgarian (at the Ministry of Justice), according to the sample to the Convention. The submitted document is certified by one apostille even if it has more than one page.

Bulgarie

(a) A document of several pages is fixed together with a staple and a paper corner. We will provide apostille to the page/pages with true signatures but not to other pages. If there is more than one signature on the document, it will be up to the applicants to decide whether they want the apostille be placed on each and every page with signature or just on a specific page. (b) The apostille form is engraved in a chop which is affixed on the document or page requiring authentication. If the document or the page does not have any space, an apostille will be created by affixing the chop with the apostille form to a blank sheet to be attached to the document or page requiring authentication.

Chine (Hongkong)

The apostille is affixed at the back of the document if there is space. In case there is no space, the apostille is affixed on a supplementary page with the logo of the Central Authority, which is attached to the document. The procedure is exactly the same when the document has several pages, i.e., the apostille is affixed at the back of the last page if there is space; otherwise, it is affixed on a supplementary page with the logo of the Central Authority, which is attached to the document. A white seal is placed on the apostille.

Chine (Macao)

The format of the apostille of Colombia is a sticker, which is fixed manually to the document. On a document consisting of several pages, the apostille is issued on the page which bears the signature to be legalized, which generally can be found on the first or last page of the document. In the case of documents in which each and every page has been signed, the apostille is fixed to the last page. On the apostille itself the number of pages of which the document consists, is specified.

Colombie

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The U.S. Department of State prints each apostille on an allonge, and completes it with impressed seal and original signature. If the document has several pages it is secured by grommet or a hole is punched and a ribbon tied to secure it, and the allonge is then attached to the first page by grommet. State secretary of state offices have a variety of practices for preparing an apostille. Many attach an allonge by staple only to the page for which the signature is to be confirmed, but do not make an effort permanently to secure all the pages of the document. We are not aware of any authority in the United States that stamps or glues an apostille onto the document to be authenticated.

Etats-Unis

In practical terms, all documents are bundled up and the apostille is placed as the last paper at the bottom of the pile. Finally, the whole pile is attached together with a signet.

Finlande

Concernant les méthodes utilisées, notamment lorsque l’acte public à apostiller comporte plusieurs pages, les réponses apportées par les Parquets généraux des cours d’appel sont détaillées en annexe [voir les réponses complètes sur le site web de la Conférence / see the full replies on the Conference’s website]. Si les pratiques paraissent quelque peu varier d’une Cour à une autre, généralement, quand l’acte à apostiller comporte plusieurs pages, l’apostille est apposée en dernière page, aux côtés de la signature de l’autorité signataire de l’acte. Il est rapporté que dans certains cas, le nombre de pages du document est mentionné ou encore que le sceau du Parquet général est apposé sur chaque page lorsque celles-ci ne sont pas numérotées.

France

Concerning multi-page documents, the apostille is affixed at the end of the document, and the public authority issuing the apostille affixes its stamp between the pages of the document to ensure unity of the document. The Districts and Prefectures affix the apostille by means of a rubber stamp, whereas at the Courts of First Instance the apostille is printed on a separate sheet of paper.

Grèce

Both Ministries place the Apostille on an allonge. The MOJ fixes the Apostille with a ribbon of the colours of the national flag; the ribbon is fixed with a sticker on the back of the document. The sticker is sealed with the seal of the MOJ in a way that the seal extends onto the paper. The MFA uses a red sticker on the left corner of the document so that it covers the front and the back sheet and the sticker is sealed in a way so that it extends onto the paper.

Hongrie

Where a public document to receive the appostille has several pages, the authority emanating the document affixes seals at the joining of each two pages or perforates the pages and the competent authority issues the apostille on the official seal or stamp which the document bears.

Japon

The apostille is, in all cases, printed out on letterhead paper. The apostille certificate is then bound to the document with blue ribbon, which is affixed to the apostille with the seal of the New Zealand Department of Internal Affairs.

Nouvelle-Zélande

In documents of notaries the pages are held together by a ribbon that is fixed to the page on which the apostille and signature is placed.

Pays-Bas

When the public document to receive the apostille has several pages, it is treated as a single document, and only one apostille is issued.

Portugal

We attach the apostille to the page which has been signed by the appropriate official. Royaume-Uni

After production of the apostille, it is normally attached to the document. Sometimes the apostille is a separate document and sometimes it is affixed (stapled) on the back of the document. It is also quite common that a label is attached to the public document together with a seal or a ribbon. But the practise varies. If the public document has several pages some authorities attach the apostille only on the first page, but others put an apostille on every page. A very common method is to put the apostille on the front page and then fasten all the documents together with a seal.

Suède

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Lorsque l’acte public comporte plusieurs pages, la pratique varie d’un canton à l’autre. Les pages des documents sont en générale reliées (en les agrafant et en apposant un sceau sur toutes les pages ou en repliant un coin et en apposant ensuite le sceau sur les pages ainsi décalées), puis l’apostille est apposée sur la dernière page ou sur une allonge. D’autres cantons apposent l’apostille sur la première page ou plus précisément sur celle qui contient la signature à légaliser. La Chancellerie fédérale n’utilise pas de sceau et appose l’apostille sur la page qui comprend la signature originale, ou éventuellement au verso de cette page.

Suisse

8. Frequency of consultation of the register or card index?

Consultation of the apostille register has not arisen. Allemagne,

Nouvelle-Zélande

Au vu des réponses apportées par Parquets généraux des cours d’appel, ci-après reprises, les demandes de consultation du registre à fin de vérification sont inexistantes ou rarissimes. Deux Cours n’en ont pas moins souligné que la tenue d’un registre s’était avérée utile pour permettre de confirmer la fausseté de mentions d’apostilles frauduleusement apposées sur des actes produits à l’étranger.

France

The figure concerning applications filed with the competent regional courts for consultation of the register averages out at 1 per month (for each authority). Verification whether the particulars in the certificate placed on an administrative document correspond with those in the register is only requested by way of an exception.

Autriche

The archives of the register of signatures are sporadically consulted. This method is only used when it concerns documents for which the apostille is rarely solicited.

Colombie

Most registers are kept entirely on electronic media. Despite the fact that rejections of apostilles of state secretaries of state occur from time to time, requests to verify an apostille through the register or card index are almost unknown.

Etats-Unis

No, extremely / very rarely.

Australie: We have received two requests over the last year. Chine (Hongkong): We have received such requests very infrequently, just once or twice over the last four years.

Australie, Chine (Hongkong),

Chine (Macao), Finlande, Grèce, Hongrie, Japon,

Portugal, Royaume-Uni, Suède, Suisse

Consultation of the register index is required very often, both by foreign diplomatic missions accredited to Bulgaria and by concerned authorities and persons.

Bulgarie

No information available. Pays-Bas

9. Sign. by mech. means, stamp and / or elec. means? Sec. measures?

The apostille itself is not filled in mechanically or electronically. The issuing authority affixes its seal/stamp. Apostilles are always signed by hand by the court president or his appointed deputy (vice president, then the most senior judge).

Allemagne

No – Although we may produce a computer generated copy of the apostille stamp, all details are filled in by hand and it is signed by hand. A wet seal is placed in one corner and in the other a wafer seal, which has the relevant Department of

Australie

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Foreign Affairs and Trade office seal impressed over it.

Due to the advanced techniques of reproduction apostilles are - for safety reasons - signed personally. Neither signatures by mechanical means, nor stamp, nor electronics are used. The signature is normally accompanied by a stamp indicating the name of the signing person in block letters.

Autriche

The apostille is signed manually by authorized officials of the Ministry of Justice or of the Ministry of Foreign Affairs. Specimens of their signatures have been provided to all diplomatic and consular authorities accredited to Bulgaria, as well as to the diplomatic and consular missions of Bulgaria abroad. The stamps that are affixed on the apostilles, are put on the place provided for that – item 9 of the sample of the application of the Convention.

Bulgarie

No, we do not use mechanical or electronic means to fill in the apostilles. The method of creating an apostille is described in answer 7(b) above.

Chine (Hongkong)

At the moment, the apostilles are filled in manually. Nevertheless, following the electronization of the registry and notary, the MSAR is studying a secure way of electronization of the courts. Most probably, the same security measures will apply to apostilles.

Chine (Macao)

No electronic stamps or signatures are used in Finland. The apostilles carry a mechanical stamp and a handwritten signature, and the apostille is attached to the document with a signet.

Finlande

No. The signature is always affixed manually. Nouvelle-Zélande

The original signature and the completion of the information on the apostille are made by hand. Neither mechanical nor electronic means are used in this respect.

Grèce

Practice is still very traditional and uses standard procedures and models as set out in the Convention. Legalisation of electronic documents is unknown. Practitioners are very in favour of an extention of the use of the Legalisation Convention, since it extremely helpful. Electronic handling of documents by legalising authorities is welcomed if sufficient guarantees to the authenticity of the electronic signature are available.

Pays-Bas

Signatures by mechanical or electronic means are not used. Hotmelt glue is used, instead of sealing wax, to print the stamp of the competent authority in the apostille.

Portugal

We do not use mechanical signatures. Each apostille has an original signature. Royaume-Uni

Quite a few authorities are using a stamp, but a handwritten piece of paper is still the most common form of an apostille. Some authorities are starting to fill out the apostille electronically. They have scanned the apostille into their computer as a form. But the signature is always handwritten.

Suède

The signatures are stamped onto the apostille directly by the authorized civil servants. Colombie

As indicated in the answer to question 7 above, many state secretary of state offices use computer-generated laser-printed apostilles, seals, and signatures. All use limited access/secure systems for electronically generating the seals and signatures. Many add other security methods, including security paper, embossed foil seals, hand-embossed seals, machine signatures, and original signatures.

Etats-Unis

Il ressort des réponses apportées par les Parquets généraux des cours d’appel que dans tous les cas, est utilisé un tampon humide ; que dans presque tous les cas, l’apostille est soumise à la signature manuscrite d’un magistrat. L’apostille est signée par un personnel du greffe dans trois cours d’appel. Dans trois autres Cours, il est recouru à un procédé de signature mécanique ou par tampon; dans une autre Cour, il est recouru à un procédé de signature mécanique uniquement

France

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quand il s’agit d’apostiller des extraits du casier judiciaire.

In both Ministries the Apostille is signed and stamped mechanically. Hongrie

We use a signature by a rubber stamp. We use several colors of ink depending on parts of apostille such as issue date, issue number, name of signee, official seal or stamp as security measures to avoid any fraud.

Japon

10. Electronic register or card index?

There is – in addition to registers on paper as a general rule – also an electronically managed register. However, this differs between courts. For example, the courts of Lower Saxony report that their register for the current year is being kept electronically. At the end of every year, they reported further, the entire register is printed out on paper, put in files and then erased from the electronic data system. On computer, only the most recent register from the current year could be accessed.

Allemagne

Most authorities, including the U.S. Department of State, keep only electronic registers. Some keep electronic and paper registries.

Etats-Unis

Yes, we keep the signatures on a database. We do not keep paper copies of the entries but we can produce a detailed record electronically. This record can be printed.

Royaume-Uni

The register is kept on a computer database. We do not need to keep hard copies because the Australian Government rules regarding computer based records requires all computer systems to have a series of backups.

Australie

Yes, electronic medium is used to keep the register index. A paper copy of the register of entries is only kept at the Ministry of the Foreign Affairs, “Consular Relations” Directorate, “Verifications and Legalizations” Sector. The register is public as required by the Convention. At the Ministry of Justice there is no paper copy of the register of entries. A copy of the register index in its electronic version is kept in the general record on the server of the Ministry of Justice. The creation of a paper copy of the register of entries at the said Ministry is not envisaged.

Bulgarie

None of the Districts or Prefectures keeps a computerized index. The Court of First Instance of Piraeus maintains an electronic index, without keeping a paper copy of the index; on the contrary it maintains, in paper copy, the petition by the applicant for the apostille and a photocopy of the completed and duly signed apostille for every document submitted. The Court of First Instance of Athens is completing the computerization of its archives. Upon completion of this project, the apostille index will also be kept in electronic form with this authority.

Grèce

The MOJ uses an electronic register of all files including those of Apostille requests. The hard copy of the Apostille is not kept but the application form filled in by the client rests in the file. This form includes the name and address of the client, the name of the state in which the document is intended to be used, the name of the official whose signature is to be certified and the number of the document to be certified. In the electronic register the name of the person who signed the Apostille is also fixed. The application forms and the electronic register contains all the relevant information that may be necessary in eventual later consultation therefore we do not intend to change the present system. The MOJ has an updated collection of specimen signatures and stamps of all notaries as well as of the presidents and vice-presidents of each court. The MFA has no electronic register but preparations for a computer-based register have started. The relevant information necessary for eventual later consultation (the name of the official whose signature is to be certified, the type and number of the document to be certified, the number of the Apostille) is registered in a registry-book. The copy of the Apostille is not kept.

Hongrie

Yes. The register is kept on an Excel spreadsheet. A print-out is archived at the end of each month. Nouvelle-Zélande

It is gradually becoming more common for the authorities to use an electronical medium to keep the register or the card index. If they do so most of them keep a paper copy as a back-up. But a number of authorities still keep the register in a paper format “card index” only.

Suède

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Près de la moitié des cantons ainsi que la Chancellerie fédérale tiennent un registre sous forme électronique; la plupart de ces autorités conservent toutefois une copie papier par année pour les archives.

Suisse

Un support électronique pour tenir le “registre ou fichier” prévu à l’article 7 de la Convention paraît être utilisé dans trois Cours d’appel, seulement. Si l’une continue de tenir parallèlement un registre papier, les deux autres indiquent ne pas en faire d’édition sur papier, faute de besoin.

France

The card index is filed in folders, in which the official letter is filed, which bears the signature of the civil servant of the office which legalizes the document, as well as an index card on which the heading and the signature of the civil servant are registered. At the moment a system is being developed, which magnetically registers the signatures by way of a scanner, so the signatures can be compared when the document has been received.

Colombie

No, the register is kept in traditional book-form. As 85 to 90 % of the apostilles are placed on the document itself and signed personally, the use of an electronic medium to keep the register or card index would in these cases rather impede an efficient work flow. Only in cases where the apostille is placed on an "allonge" the use of an electronic medium seems to be preferable. The data fed into the computer in order to keep the register or card index may then simultaneously be used for the production of a computer based apostille. This computer printout may be attached as "allonge" to the document.

Autriche

No. We still use the paper form register. Chine

(Hongkong), Portugal

At the moment, electronic medium is not used to keep the “register or card index”, but the possibility of using it in the near future is under study. Please refer to the preceding answer.

Chine (Macao)

There is no electronic card index. The apostille card index is a register of paper copies of the apostilles only. Finlande

We do not use an electronic medium. So far we have no plan to use it in the future but we will consider introducing such method as the need arises.

Japon

11. Apostilles for elec. docs?

In practice, the question repeatedly came up as to whether German documents issued with an automatically produced signature could be affixed with an apostille. This involved, e.g. commercial register extracts or criminal records of the Federal Central Register’s office, and also machine produced enforceable default summonses. Pursuant to Article 3(1) of the Hague Apostille Convention of 5 October 1961, apostilles are affixed “in order to certify the authenticity of the signature”. Machine-produced comments do not suffice as a “signature”. Commentaries on the Convention do not contain any statements as to whether the definition of a signature was even the object of discussions between the Contracting States. An autonomous interpretation of this term has not arisen. Thus, the definition of this term remains a matter which is to be determined according to the law of the issuing State, i.e. domestic law. In the context of section 126 of the German Civil Code (Bürgerliches Gesetzbuch - BGB), a signature in German civil law is always understood to be a hand-written original signature. A machine-produced signature represents another category; it lacks the component of having been done by hand. For the production of such signatures, the text form was added to the BGB as a new category of signature (section 126b BGB) and in appropriate places – e.g. section 57 of the Commercial Register Regulation – existing conditions on written forms under civil law were opened for the text form. In the context of legislation, section 13 of the Consular Act also requires the hand-written signature. Mechanically produced documents, e.g. facsimile name stamps or photocopied signatures cannot be ratified (cf. Hoffmann/Glietsch, Consular law, 68th supplementary edition, dated: 1 September 2001, section 13 Consular Act, number 2.1). A signature within this meaning also rules out signatures which have been scanned. No less requirements should be made in respect of the affixing of apostilles to a document as is made in respect of legislation. Documents which have been produced automatically can therefore only be affixed with an apostille if either the hand-written

Allemagne

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signature is obtained after the fact or the document is certified with a hand-written signature. However, this involves a complicated process, which works at cross-purposes to the improvement of administration efficiency which automation strove to achieve. This process appears to be manageable at present in terms of figures. However, suggestions for better solutions should be discussed for this area, which simultaneously address the danger of falsifying such documents.

We do not issue apostilles for electronic documents. We would be happy to explore this further, particularly if it provided a better service for customers and could be implemented efficiently. We do however have reservations with respect to the possibility of fraud.

Australie

No. This possibility, however, should be examined. Grèce

No, for safety reasons apostilles for electronic documents are not issued. There is no intention to introduce this possibility for the near future.

Autriche

No, we have not issued apostilles for electronic documents. Nobody has requested issue of apostilles for such documents so far.

Bulgarie

No. In principle, there is no objection to issuing apostilles for electronic documents but there are many legislative and technological implications. We are in the stage of exploring the use of electronic means for filing documents by applicants and issuing documents by the Courts. But the exercise does not cover documents from abroad or to be used abroad.

Chine (Hongkong)

No, it has never been requested, but the MSAR is contemplating doing so. Please refer to the preceding answers. Chine (Macao)

At the moment no apostilles are issued for electronic documents. The use of electronic ways to issue public as well as private documents, which is more extensive day by day, makes it necessary to take decisions in the near future in favour of the issuance of apostilles on electronic documents.

Colombie

We are not aware of any authority that issues apostilles for electronic documents, though this is something to consider for the future. Electronic notarization is occurring now in only a few test locations.

Etats-Unis

We have not received any requests for issuance of apostilles inn electronic documents. Portugal

Apostilles are not issued for electronic documents in Finland. Finlande

Les Parquets généraux des cours d’appel ont indiqué ne pas avoir délivré d’apostille pour des documents électroniques. Au demeurant, il n’apparaît pas que des demandes en ce sens aient été formulées.

France

At present no Apostille is issued on electronic documents in Hungary. We are open for the use of new technologies in this field. The practical experience of those states that have already used the new forms of communication would of course be very useful.

Hongrie

We do not issue apostilles for electronic documents. Though we think it necessary to take account of the current national system and the necessity in order to introduce such method in the future, we think that it raises some difficulties.

Japon

New Zealand has not issued apostilles for electronic documents. To date, process has not been requested by any clients. New Zealand has not yet considered the possibility of issuing apostilles for electronic documents.

Nouvelle-Zélande

No. Royaume-Uni

We have no experience of issuing apostilles for electronic documents. Some voices are heard that this would not be secure enough, but our conviction is that this will be the case in the future with the use of electronic signatures. We see

Suède

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secure enough, but our conviction is that this will be the case in the future with the use of electronic signatures. We see no reason why it shouldn’t be possible to send a public document to the designated authority via e-mail and then receive an apostille signed with an electroncial signature.

Non. A moins de trouver un système de sécurité satisfaisant, cette hypothèse n’est pas envisagée à l’heure actuelle. Suisse

Books and Readings 1. A. Schmidt T.Gondrom L. Masinter - “Requirements for Certification Services

Internet Engineering Task Force (IETF)”, October 22, 2004 - 2. Adams C. & Llyod S. (1999). “Understanding Public-Key Infrastructure Concept,

Standards, and Deployment Considerations”, McMillian Technical Publishing. 3. Ahlers G.P (1998). "The Impact of Technology on the Notary Process”,.

University of Arkansas School of Law, JURIST: The Legal Education Network™ University of Pittsburgh School of Law, Pittsburgh, Pennsylvania, USA,: 9.

4. Attorney-General for the State of Alaska (1992). “Notary Public Handbook for the

State of Alaska. Juneau Alaska”, State of Alaska. 5. Barassi Theodore S (Undated). “The Cybernotary: Public Key Registration and

Certification and Authentication of International Transactions”,. American Bar Association:

6. Bierce & Kenerson P.C. – “Electronic Contracts: Evidence and CyberNotaries”–

2004 - http://www.biercekenerson.com/Articles/E-Contracts.htm 7. Brumfield Fry P. - Professor of Law at the University of Missouri School of Law.

“A Preliminary Analysis of Federal and State Electronic Commerce Laws”, 2000 - Baker McKenzie Global E-Commerce Law - http://www.bmck.com/ecommerce/home-transactions.htm

8. C. Wallace U. Pordesch R. Brandner

“Long-Term Archive Service Requirements” - 2004 Internet Engineering Task Force (IETF)

9. Carl Wallace - Orion Security Solutions, Ulrich Pordesch - Fraunhofer -

Gesellschaft, Ralf Brandner, IntercomponetWare AG - 2003 “Long Term Archive Service Requirements” –Internet Engineering Task Force -

10. Clarke R - Visiting Fellow, Department of Computer Science, Australian National

University - Electronic Commerce Definitions - October 2000 - http://www.anu.edu.au/people/Roger.Clarke/EC/ECDefns.html - 16 January 2002

11. Electronic Commerce Expert Group (ECEG) - 1998

Electronic Commerce: Building The Legal Framework - The Electronic Commerce Expert Group To The Attorney General - March 1998 http://www.ag.gov.au/aghome/advisory/eceg/single.htm#ch2art2

12. Electronic Commerce Expert Group (ECEG) - 1997

Issues Paper No1 - The Electronic Commerce Expert Group To The Attorney General - http://law.gov.au/aghome/advisory/eceg/ecegissue1.htm

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http://www.bmck.com/ecommerce/home-transactions.htm

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THE ROLE OF THE NOTARY IN SECURE ELECTRONIC COMMERCE · Professor Peter Zablud, Director of...

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