FIRST INTERNATIONAL FORUM ON E-NOTARISATION AND
LEGALISATION
30/31 MAY 2005, NEVADA, USA


A Report by Michael Lightowler

[Council member of the Notaries' Society]



Executive Summary

- The forum was attended by 160 representatives from 31 different countries and states to review electronic notarisation and electronic legalisation.

- Technology will inspire and force change in the way all documents are notarised/legalised but will take time.

- No changes are required to the Hague Convention to embrace e-legalisation.

- Most countries have now enacted legislation recognising the legal effect of electronic signatures and documents.

- Relying partners may wish to verify e-legalisation and therefore a register of legalisations open to inspection on a need to know basis was required and to be accessible on line.

- States should be encouraged to introduce the technology to facilitate electronic legalisation including the ability to recognise Notarial electronic signatures.

- E-legalisation must be invalidated if there is any attempt to alter the underlying document.

- Guidelines on the use of electronic Apostilles should be drafted by the Permanent Bureau of the Hague Conference.

- The US Department of State is looking for parties jointly to pilot a scheme for the issue of electronic Apostilles.

- Delegates from Mexico, Italy, Austria and British Colombia gave practical online demonstrations of the use by Notaries of the preparation of public acts and the registration of private documents with Government Authorities using electronic signatures.

- As to who should legalise documents in the future there was a divergence of views as to whether this should be a State organisation or a professional body responsible for those whose signatures were being verified. In the latter case there could be a number of different legalisation authorities according to the profession involved

- Further work would now be done based upon the conclusions reached at the Conference with a view to producing international and uniform standards of legalisation and encouraging the adoption of technology to utilise electronic Apostilles.


On the first day the forum was addressed by a number of leading civil and common law and other delegates (largely representatives of Governments) Notaries whose comments can be summarised as follows :-




1. Milt Valera, President of the National Notary Association


In a world where the theft and forgery of identification is common place the Notary should be relied upon as an agent of trust.

Public key infrastructure or PKI was offered as the panacea for all electronic transactions where trust and security were important. Now biometrics are the way forward. Even in an age where biometrics may offer greater security of identification there will still be people who want to commit fraud by impersonating Notaries. Therefore the Notary’s own credentials are important and his integrity is paramount.

In relation to foreign transactions the Apostille is therefore an important check on the authority and identity of the attesting Notary. In times when electronic transactions are becoming the norm, it is important that electronic Apostilles are also available. International organisations such as the Hague Conference on private international law must provide the legal framework to prevent fraud in commercial transactions. It is important that such organisations (and the States within the USA) work together to adopt uniform identification standards for all Notaries and a single form of legalisation.


2. Hans Van Loon, Secretary General of the Hague Conference


Explained the background to the Hague Convention and the reasons why the Apostille was introduced in place of a tortuous process of legalisation. He explained that 87 States have now acceded to the Hague Convention. It is the most widely adopted international convention and the most frequently applied. Its purpose is to provide a single check on the authenticity of the attesting officer and to compile a database of information from which the numbering and registration of each Apostille issued can be retrieved. [Do the Foreign Office offer this service?]

Enquiries of member states have shown a wide disparity in the number of documents being presented for legalisation. He gave as examples the UK (660 per day), Colombia (1,500 per day) the United States (several thousands per day) and Japan (30,000 per annum).

Over 20 States have joined the Hague Convention in the last 4½ years. Notwithstanding any change to an electronic form of legalisation, the paper based form will need to remain for several years because many countries will remain paper based for the foreseeable future e.g. India.


3. Giancarlo Laurini, President of the UNIL

Stressed the importance of as many countries as possible joining the Hague Convention and underlined the importance of the legalisation process in preventing fraud.

He believed that electronic legalisation would be a process of gradual change. Whatever system is adopted needed to be speedy and reliable. Despite the different approaches of the various countries that were members of the UNIL there was no reason to suppose that the problems facing the introduction of electronic legalisation could not be resolved. He stated that the UNIL fully supports any system which protects international commerce and the interests of citizens.


4. Dr Christoph Bernasconi, First Secretary of the Permanent Bureau of the Hague Conference


Outlined the main purpose of the Convention which was to facilitate the circulation of documents between different countries who are members of the Convention. He summarised that the effect of legalisation is to certify the capacity and identity of the signatory. The act of legalisation does not verify the Notarial Act but merely the authenticity of the attesting Notary.

Dr Bernasconi was of the view that interested parties should be able to establish on line when an Apostille was issued, and by whom, in order to verify that the Apostille had in fact been issued by the relevant issuing authority on a particular day.

He said that an Apostille with a digital signature on an electronic copy of an electronic public document is entirely possible. An electronic Apostille with a digital signature on an electronic public document also signed digitally would be an additional protection against unauthorised modification.

He was also of the view that electronic legalisation could be introduced without any alterations to the current text or form of the Hague Convention.

He also discussed whether Apostilles are actually needed when electronic documents can be issued with their own verification, say from the professional authority within each state governing the Notaries of that state. However he believed that each State would want its own independent verification authority.


5. Bill Kennair


Bill Kennair began by defining the traditional role of the Notary and comparing and contrasting Notaries in the common law and civil law jurisdictions.

He went on to describe how electronic notarisation of documents may take place in the future using digital signatures. He mentioned some safeguards which will be needed and asked how many people would use the technology except perhaps in those countries like Austria, Italy and Spain which had introduced electronic signatures a lodgement of documents where Notaries were acting on the direct authority of the State

He outlined the main issues surrounding Notarial Acts; the move towards electronic commerce namely (a) Notarial Governing Bodies may be compared to certifying authorities, (b) Notaries carry insurance and assume responsibility, (c) Notaries provide an audit trail of documents, including electronic archiving where appropriate, (d) many Notaries have functions delegated to them by the State, (e) Notaries are often governed by privacy and data protection laws.

If E-Apostilles or E-Legalisation are going to be widely accepted the member States will need to agree that there is uniformity from all convention countries.


6. Mario Miccoli, Secretary of the UNIL

 Mr Miccoli was accompanied by two colleagues from Italy who gave a very detailed explanation as to the way in which electronic digital signatures are already widely used in Italy. He said that all Italian companies are required to lodge accounts electronically in the Commercial Register and this includes the use of digital signatures. Italian Notaries send to the Land Registry and the Commercial Registers thousands of electronic signatures daily. Italian Notaries are a certifying authority and each Notary receives a digital signature to prove his identity and his qualification. He also explained that Notaries were delegated powers by the State to draw up and authenticate public documents.

Mr Miccoli asked the question whether it would not be possible to change the Hague Convention so that instead of national authorities such as Government and Embassies issuing legalisation certificates, they could instead be issued by the professional body governing Notaries in the relevant State.

There then followed a detailed demonstration online by Mr Miccoli’s colleagues as to how documents were notarised and lodged electronically in Italy. However the position was somewhat different in Italy from the UK, because Notaries had a responsibility for the lodgement with the Government Bank of Citizens’ taxes. They also had a very important part to play in the transfer of property. (Cf. the position in the UK where increasingly citizens and their professional advisers are being required to lodge documents electronically at Companies House, Revenue and Customs and the Land Registry).


7. Austria and Mexico

 There then followed demonstrations from Austria and from Mexico on the adoption and use of electronic signatures and electronic registration of Notarial Acts in both of those countries.


8. Richard Hansburger, Director of E-Notarisation, National Notary Association of America

He has made substantial progress not only in relation to the preparation of electronic Notarial Acts but also in the creation of digital certificates, the electronic Notarial Seal and in the creation of a new programme for the provision of electronic Notarial services (“ENS”) which he hopes will provide a common system of electronic Notarial Acts across the United States and will enable the Government to regulate the activities of 4.5 million Notaries in the United States and provide adequate protection for the public from fraud and abuse of the Notarial Office and protect its citizens from identity crimes and document fraud. [I believe that the NNA would be of great assistance to UK Notaries in introducing relevant E-Notary technology e.g. ENJOA].


9. Jeffrey Kovar, US Department of State

He has started to run a pilot project for E-Apostilles. He is looking for partners to join in the project. He explained that in the United States Apostilles are issued by the Department of State through authentication officers, clerks of courts and state Notary Public administrators. There were 50 States (plus the District of Colombia and 2 the dependent territories of Guam and Puerto Rico).

Electronic documents had become possible due to the introduction of the following legislation: Government Paperwork Elimination Act, Electronic Commerce in Global and National Commerce Act and the Uniform Electronic Transactions Act. The position was also regulated by various international conventions such as the Hague Convention of l961, the Model Law on Electronic Commerce issued by Uncitral in l996 and again in 2001 and a further convention for 2005 was pending. [Bill Kennair has close links with UNCITRAL].

Mr Kovar speculated as to what a receiving country would need if the State Department issued an electronic Apostille. He thought that an Adobe reader would be an essential first step as well as a web link to check that the necessary authorisations had been given for the issue of the Apostille. He provided an example of a patent issued in the United States in electronic form. If this were to be legalised electronically, it could be sent abroad by email or on a CD or a floppy disk. If it was sent, for example, to Russia and was produced in Court, it is likely that the authorities would wish to check the origins of the Apostille and whether it had been authorised.


10. British Columbia

 On the second day of the Conference the delegates heard from Wayne Braid a Notary of British Columbia who explained the system of E-Notarisation in British Colombia and gave a practical example online. He explained there were 323 Notaries in British Colombia and out of 1,600 applicants per year only 30 qualified.

The Notaries website bconline is a portal for the Government’s server which logs into the Government’s database. All electronic transfers of land and shares and the creation of mortgages were prepared by lawyers and Notaries.

Land Registration in British Colombia is carried out electronically and properties are delineated by reference to their latitude and longitude. Taxes are paid electronically. Every transfer of land in British Colombia must be signed by a lawyer or a Notary.


11. Delegates’ Sessions

 The remainder of the Forum constituted a discussion on a number of topics prepared by Jeffrey Talpis a Professor at the University of Montreal to bring together some conclusions. These questions were then discussed in separate sessions. This was followed by a general discussion of all of the delegates which then produced a summary of conclusions, a copy of which is attached. At the date of this note only a draft is available.



Michael Lightowler

E-mail : ml@notaryservices.co.uk

12 July 2005