1. International forum on eNotarization and eApostilles The impact of e-technology on notarial acts: legal and technical possibilities and limits -relevance for Apostille Convention William Kennair, Scrivener Notary, London, UK

2. eNotarization and eApostilles The Notary is an officer who has been granted the authority of the State by delegation for certifying the documents whose author is the same Notary, assuring their conservation and their probative and executive force. Within the scope of the necessary independence of his duty the Notary practises it within the framework of a free profession that covers every legal non- contentious issue. His intervention, because of the advice that he gives the parties in an impartial but active way, as well as because of the wording resulting from it, grants the user the legal security that he seeks. This is even more guaranteed because the Notary is a legal professional with a high university qualification, and has acceded to his profession after several tests, courses and tenders, and practises it following strict disciplinary rules under the permanent control of a public authority, and thanks to a geographical distribution that permits to make use of his services throughout the national territory. Finally the intervention of the Notary in preventing eventual lawsuits and in simplifying the execution of proceedings is in fact an essential mechanism for the good administration of justice"

3. eNotarization and eApostilles The identification of persons, their authority and capacity according to the law of the place at which the Notary makes that authentication; The preparation of a document according to the form required by the jurisdiction in which it is created so that in matters of form it may be given recognition in the place in which it is to be enforced or carried into effect; The ascertaining of the will of the parties to enter the transaction after the giving of independent legal advice; The authentication of the due execution of a document according to the place of its execution; The authentication of the content of a document or transaction in a way which will provide assurance, evidence or enforceability depending on the law of the place in which it is to be used The preservation of reliable evidence of the execution, the form and the content of the document by the making and retention of a trustworthy record. Ancillary services: these include the giving of legal and other advice, and the provision of translation and communication services. Traditional role of the Notary

4. eNotarization and eApostilles In electronic form there is an exact parallel, but different problems, for all these activities to be fulfilled: The identification of persons, their authority and capacity according to the law of the place at which the Notary makes that authentication; The preparation of a document according to the form required by the jurisdiction in which it is created so that in matters of form it may be given recognition in the place in which it is to be enforced or carried into effect; The ascertaining of the will of the parties to enter the transaction after the giving of independent legal advice; The authentication of the due execution of a document according to the place of its execution; The authentication of the content of a document or transaction in a way which will provide assurance, evidence or enforceability depending on the law of the place in which it is to be used The preservation of reliable evidence of the execution, the form and the content of the document by the making and retention of a trustworthy record. Ancillary services: these include the giving of legal and other advice, the provision of translation, and registration and communication services.

5. eNotarization and eApostilles What form will it take? A digital signature? What safeguards are needed? Who will use it? How will it be used? Will it last? Is it widespread yet? Form Authentication Due execution Recognition Assurance Evidence Enforceability Preservation of reliable evidence Registration Communication What is e-notarisation?

6. eNotarization and eApostilles Just as every State has created its own domestic law for the conventional conduct of business so each State has tended to create its own domestic law in relation to electronic commerce. The effectiveness of their intervention in electronic commerce within their own jurisdictions will be affected by the limitations imposed by those jurisdictions. The effectiveness of their intervention in international transactions depends on the level of recognition which is accorded to their authority in the jurisdiction other than their own in which the transaction is to be given force and effect.

7. eNotarization and eApostilles From a legal and business point of view, the notarial system has already addressed many of the problem issues: Notarial governing bodies can be compared to CAs, in that they license individual notaries, who in turn act for their clients in a certification function. Notaries, especially those in the civil law tradition, are personally responsible for their actions, and most carry liability insurance to cover claims, even when those claims come from a third party who has relied upon a notarial certificate. A notarial certificate assumes responsibility for the contents thereof, thus relieving the relying party from further inquiry beyond the notary himself. Notarial rules require an established audit trail and retention of documents for specified periods. The notarial infrastructure ensures financial liability, through insurance, mutual funds, or in some cases, through a level of state guarantee. (The system has existed for hundreds of years and has been able to support any claims made upon it) Notaries are appointed by the state, and additionally there is an element of delegated state function in the office of a notary, so that the concept of trust is already built in. Compliance audit is ensured through the notarial disciplinary rules. There are established privacy and data protection rules

8. eNotarization and eApostilles From a legal and business point of view, the notarial system has already addressed many of the problem issues: Notarial governing bodies can be compared to CAs, in that they license individual notaries, who in turn act for their clients in a certification function. Notaries, especially those in the civil law tradition, are personally responsible for their actions, and most carry liability insurance to cover claims, even when those claims come from a third party who has relied upon a notarial certificate. A notarial certificate assumes responsibility for the contents thereof, thus relieving the relying party from further inquiry beyond the notary himself. Notarial rules require an established audit trail and retention of documents for specified periods. The notarial infrastructure ensures financial liability, through insurance, mutual funds, or in some cases, through a level of state guarantee. (The system has existed for hundreds of years and has been able to support any claims made upon it) Notaries are appointed by the state, and additionally there is an element of delegated state function in the office of a notary, so that the concept of trust is already built in. Compliance audit is ensured through the notarial disciplinary rules. There are established privacy and data protection rules

9. eNotarization and eApostilles What is legalisation (or legalization!)? Authentication Element of Trust Consular certification Chain of certificates Apostilles

10. eNotarization and eApostilles Convention abolishing the requirement of legalisation for foreign public documents. 5 th October 1961 Article 2..legalisation means only the formality by which the diplomatic or consular agents of the country in which the document has to be produced certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which it bears.

11. eNotarization and eApostilles Since e-transactions are worldwide and instantaneous, do we really need to insert another level of certification into the system?

12. eNotarization and eApostilles Convention abolishing the requirement of legalisation for foreign public documents. 5 th October 1961 Article 1 The present convention shall apply to public 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. For the purposes of the present Convention, the following are deemed to be public documents: a)documents emanating from an authority… b)administrative documents c)notarial acts d)official certificates.., such as.. notarial authentications of signatures

13. eNotarization and eApostilles What comprises a public document for the purposes of the Convention, when it exists only in electronic form? Will we need a new Convention?

14. eNotarization and eApostilles Because law looks backwards, its has difficulty dealing with change.…In order to understand law one must understand not only law's past, but also law's intrinsic "pastness." This tension between law's "pastness" and its confrontation with emerging technologies is nowhere more apparent than with respect to the Internet (Frederick Schauer, Internet Privacy and the Public-Private Distinction, Jurimetrics, vol. 28, n. 4, p. 555)