Notarization from abroad in times of travel restrictions
A French Décret, allows, for the time of the state of emergency, notarization by a French notary without a need for parties to be physically present. Explanation and analysis is here and (briefly) here. Importantly, the possibility is also open to non-residents of France. Notaries in France had, unsurprisingly, warned of the risk of fraud, but the Conseil d’Etat approved of the decret.
Austria has a similar rule in sec. 90a of its Notary Act. In Germany, this is not (yet?)possible: Art. 40(1) of the German Notarisation Act requires physical presence of the parties; the greatest distance allowed is, apparently, the way to the parking lot. Estonia has introduced an e-notary for notarisation from abroad, but this is available only in Estonian embassies.
The French and Austrian rules raise interesting private international law questions. Usually, notarization requires physical presence – which is why so many lawyers fly from Germany to France to have contracts notarized. Can they now stay at home? If two French domiciliaries sign a contract electronically while in Switzerland, and notarization happens in France, is this a case of Art. 11(1) Rome I Regulation? That would lead to the odd result that the formal requirements would follow from either Swiss law or from the law applicable to the contract (which need not be French law) and not necessarily the law of the place where the French notary sits. And yet, Art. 11(2) seems inapplicable because the notary is not an agent of the parties. Should it be applicable by analogy? Should there be a special rule for notaries that used to be unnecessary because notarization always requires physical notaries? Or is this another reason to rethink the principle of locus regit actum for internet contracts?
Due to the Covid-19 virus the Dutch law makes a last will by Skype possible. According to the new adopted Act this way of passing the notary deed of last will is possible until 1 September 2020, yet.
This is also the case for Quebec notaries, which are entitled to sign any kind of deeds by way of video conferencing during the state of emergency. This “acte notarié électronique a distance” is still authentic, just as the traditional one. Since there is no territorial limitation concerning the parties, the question about the formal validity of the act signed from abroad is also a new PIL issue emerging from this exceptional context of COVID-19.
The remote signing of a French authentic deed should last until Aug. 10. However, a recent law proposition voted by the French Sénat on May 19, 2020 calls for the extension of the system for the next five years. As of today, it has to be voted by the French National Assembly in order to come into force. The remote system is a great step forward for all non-resident persons who need to sign French notarial deeds since the notarial powers of French consulates was removed on Jan. 1, 2019.
The maximum distance permitted when presence of the parties at the same time in front of the notary is required is the size of the room, not the distance to the parking-lot.
But I agree, it is time to rethink a bit the subisidiary rule that it is sufficient if the local form of the act is being complied with. One factor is the old principle of favor validitatis, i.e. to be favourable to validity. On the other hand we have already in the 1990s had the problem when a party sitting in Germany agreed on the phone with the other party sitting in Spain on the terms of a sale of land: valid under Spanish law, invalid under German law, so it depended on the lex causae.
Very interesting topic, to deal with it is also useful to remember that:
– not all “notaries” and “notarial deeds” are equal (there are some “more equal”);
– examining the “international circulation” of notarial deeds, the concepts of “substitution” and “equivalence” must be taken into account, brilliantly exposed in the following documents:
* https://www.idi-iil.org/app/uploads/2017/06/2007_san_01_en.pdf
* https://www.idi-iil.org/app/uploads/2017/06/Jayme.pdf
– in addition to the “locus regit actum” rule, for notaries (when exercising a role of public authority), “auctor regit actum” also applies.
With apologies for not having had time to read all the background information kindly linked to in the original post and above, other issues connected to this trend to ‘de-localise’ notarial interventions include: –
a) encouraging further notary-shopping,
b) adverse effects on those notaries outside France (or other de-localising venue) who currently act for those who are physically outside France but require a French notarial intervention,
c) calling into question the present absence of a need for a notary to establish international jurisdiction over the subject matter of the juridical act before him (e.g. a French notary can draw-up an authentic instrument for a German national concerning immoveable property / land situated in Belgium); will this liberty remain and remain effective internationally (i.e.still be accepted as such outside France) if there is no longer a need in France for the parties (or those appointed under a power of attorney to act on their behalf) to appear in person in France before the French notary who draws-up the French Acte Authentique?
d) I am also unsure of how effective a remote consultation with a notary can actually be. As well as the considerable fraud possibilities, how can the transaction be said to have proceeded without some form of duress of which the notary is utterly ignorant (person off camera pointing gun at person on camera)? Less theatrically, how can a notary properly evaluate the reactions of a very old client to his advice and explanations if the notary does not know who else is in the room with the said client?
Taken together, the de-localisation trend seems to suggest either that the unintended/ unanticipated interantional consequences of the trend will soon be reversed, or, that there may be a need for EU level regulation of notarial practice itself to ensure that such practice, when it crosses borders, does so safely and with reliable effect.