DRAFT OHADAC MODEL LAW RELATING TO PRIVATE INTERNATIONAL LAW

Article 78

Foreign public documents

1. The foreign documents that have to be assigned evidential value by virtue of international treaties or agreements or special laws shall be deemed to be public documents.

2. If no international treaty or agreement or special laws are applicable, foreign documents shall be deemed to be public documents if they meet the following requirements:

  1. they have been granted by a public authority or other authority authorised in the State of origin for that purpose;
  2. they contain the legalisation or apostille and the other requirements necessary for their authenticity in the Caribbean;
  3. their granting or preparation have met the necessary requirements in the country where they have been granted. If this grant or preparation has been undertaken by diplomatic or consular authority authorised in the Caribbean, the requirements of the law of the State that grants it competence must be observed;
  4. in the State of origin the documents make full proof of the signature and their content is provided.

3. If the foreign documents referred to in the preceding paragraphs of this article incorporate declarations of will, the existence of these is deemed to be established, but their validity shall be that determined by the Caribbean and foreign rules applicable to capacity, object and form of legal transactions.

440. If we allude to validity as evidence of the public documents, we are making reference to a complex reality558. Logically, we should distinguish, firstly, the authenticity or truthfulness of the public document itself, or, which is the same, its extrinsic evidential value. Secondly, and only once the authenticity of the document is resolved, we should proceed to evaluate its capacity for serving as proof of the existence of the legal act that has been embodied in this document, or, in other words, its intrinsic evidential value; if this evidential value is recognised, an additional question is raised in order to evaluate its evidential value in relation with other means of proof whatever these may be. Finally, once the proof of the act is provided, this is regardless of the recognition of its validity.

441. In general, this provision introduces a handling of the validity of foreign public documents in the receiving State by establishing a series of controls559. It has a wide-ranging content, since it is not confined to the foreign public documents granted in other nations, but also includes those granted in the receiving State by diplomatic or consular foreign authorities authorised. To put it another way, the foreignness of a public document will always be determined by the nationality of the authority that intervenes in its grant, an authority which, additionally, has to intervene perceptively in its issue.

One should distinguish between the evidential value of the document (its capacity for providing proof of the act that it contains) and, on the other hand, the validity of the act contained in this document (paragraph 3). Firstly, it is sufficient to meet the requirements provided in paragraph 2; secondly, in addition to all the conditions related to the validity of the act, the following conditions are enforceable: the capacity of the parties (article 23); validity of the link as regards the substance (lex causae), and validity of the link as regards the form. This distinction determines that the requirements and conditions that are going to be required for giving effects to the foreign documents in the receiving State are going to vary according to whether or not one wishes to give validity to the act they contain. In the first case, the fulfilment of the requirements related to the validity of this act will be necessary, while, in the second case, it will be sufficient to verify the lawfulness of the document, with a cumulative application of the laws of the State of origin and of the forum, and verify its evidential value in the State of origin. For that purpose, the present article is not limited to introducing the requirements for the validity of the foreign public documents in the procedural field, but also considers the extra-procedural field, particularly the validity for registration. This question must be considered with the relevant provisions of the receiving State in the area.

442. As has been indicated, any document delivered by a public authority is qualified as a public document. Nonetheless, paragraph 2.i) extends the intervention cases to any “other authority authorised in the State of origin for that purpose”. This formulation intends to be respectful with the review of the own concept of “public authority”, which, in certain cases, may involve significant identification problems. Thus, the debate on the legal position and the exercise of “public power” by the notaries caused in the area of European law is noteworthy. The diction provided by paragraph 2.i) of this article permits the inclusion in its scope of any type of authority that it is expressly authorised by the legislation of the State of origin for granting public documents, without taking into consideration the intervening party in the document as public authority or not.

443. The controls provided in paragraph 2, ii) in relation with the authenticity of the document (legalisation or, where applicable, apostille) are logically intended to verify the external lawfulness of the document: authorisation of the intervening authority and the capacity in which it is acting. And this lawfulness may be verified both ex officio as well as ex parte. The condition of authenticity par excellence is the legalisation of the document, a practice that tends to be diluted, and even be eliminated, through international cooperation. This act consists in the certification by a public servant of the authenticity of the signing of a public document granted by foreign authority, as well as the condition or capacity of the authority in question. With regard to the solutions provided in the international conventions it must be indicated that the tendency points to a suppression of all of the formal requirements, also managing to make disappear the process of the apostille, in a way that it is operated on the “trust” of the correction of the same.

Especially problematic in relation with the legalisation may be the question of the specific document that has to fulfil this requirement. In this sense, practice demonstrates that, on some occasions, the document whose validity is sought to be asserted in the receiving State is accompanied by a certificate issued by the authorities of the State of origin of the document (in which it is certified that the document fulfils the specifications and requirements provided in this law) and it is precisely this certificate (and not the original document) which appears legalised. The problem, evidently, consists in knowing whether this legalisation is sufficient. In effect, if it is sought by the legalisation that the external lawfulness of the document is authorised in relation to the authority that grants it, nothing will prevent an authority (established by the law of the State of origin) from authenticating it, provided that, subsequently, in turn, the capacity of the certificating foreign authority is authorised.

In any case, it is important to highlight that the absence of legalisation of a document, if it is required, does not determine by itself the complete invalidity of this, but solely that the same will have specific effects of the private documents or a weakened evidential value.

444. Out of all of the different international texts, a separate treatment is merited, through its scope, for the Hague Convention, of 5 October of 1961, which suppresses among the States party the requirement of legalisation of public documents and which has a quasi-universal scope560. The Convention is applied to all public documents that have been authorised in the territory of a contracting State and which must be presented in the territory of other contracting State, excluding the documents granted before diplomats and consular authorities and the administrative documents that refer directly to a commercial or customs operation.

The Hague Convention suppresses the requirement of diplomatic or consular legalisation of the public documents by placing an apostille or annotation in the public document, which will certify the authenticity of the origin of the public document. It must be taken into account that its content will never be certified. The “apostille” or sole legalisation, whose model is accompanied as annex to the Convention, must meet the formal and presentation requirements provided in the Convention, and it should be highlighted that it may be consigned solely in the language of the authority that sent it, although the title must be stated in French in all cases “Apostille (Convention de la Haye du 5 octobre 1961)”. It should be recalled that the requirement of the apostille can be set aside if two States party have eliminated it through bilateral agreement.

445. The requirement provided in paragraph 2, iii) presupposes the fulfilment in the grant or preparation of the document of the requirements of the place of the grant. This condition assumes to verify, as a prerequisite for its validity, the intrinsic lawfulness of the document from the perspective of the fulfilment of the conditions established in the law of the State of origin. This referral to the law of the place of the grant, as a rule governing the lawfulness of the document, requires the prescriptive intervention of an authority in its summarised grant, which assumes, in turn, the operability of the auctor regit actum rule. The content of this regulation lies in the duty the public authority has to apply its own law at the time of formalising or documenting a certain act. Reasons of sovereignty, strictly speaking, have always justified this principle which is not opposed, in the regulation of the form of the acts, to the locus regit actum principle, since in the majority of cases, the national law of the public authority tends to coincide with the place of grant of the act.

Based on the connection between the public authority and the document that it grants, the connection between the law that attributes competence to this authority and the submission of this to the regulations that this law establishes also appears necessary, insofar as it establishes the conditions and requirements for granting documents. If both elements are considered, it is easily deducible that a connection based on the law of the authority as the law governing the document itself is suitable.

The law of the place of the grant is the option mainly followed in comparative law. The reasons are varied. On the one hand, the point of confluence in the lex loci actum of the document and the form of the acts must be considered: these have traditionally been submitted to the lex loci regit actum561, and this law on many occasions requires the formalisation of these acts precisely in public documents. This confluence explains, therefore, the connection between the documents and the form of the acts. On the other hand, from a practical point of view, a difference between the application of the lex loci or the auctor rule will only exist if this concerns documents granted by diplomatic and consular authorities of a State authorised in another State. Paragraph 2, iii) also considers the case of the validity in the receiving State of the documents granted by foreign diplomatic or consular authorities authorised in the receiving State or in other country, based on the auctor rule, which continues to serve as a solution guideline.

In any case, the auctor rule only signifies that the law of the authority is that which establishes the framework and conditions of action of the authority, but one should not be able to deduce from this the obligation of an exclusive application of its substantive law. In this sense, we should think of cases in which the auctor rule permits the application of foreign laws for certain aspects related to the grant or preparation of the document.

446. The scope of application of paragraph 2, iii), applicable to the “lawfulness” or “validity” of the document, as necessary prerequisites for this being able to produce its effects, must be distinguished from the scope of the control that must be undertaken for verifying the lawfulness of the same. Certainly, for a document to be considered as “public” not only the intervention of a competent public authority acting in the course of their duties is required, but also that the document fulfils the requirements provided by the law of the State to which the acting authority belongs562. If this is so, the problem that immediately arises is the scope and procedure of control of the recognition on the “lawfulness” of these document that must be undertaken in the State: it should be known if the evidential value of a foreign public document is subordinated to a rigorous and exhaustive control of all the elements that, in pure form, grant to this document the capacity as public documents. Particularly, it is a question of controling the competence of the authority that authorises the document and the application of the formal requirements established by the law of this authority. With respect to the authority, this has to be a public authority (or one authorised as such in the State of origin), who has to act in the scope of its competence and functions and has to “authorise” the document, i.e. has to be the author of the document, not a mere legitimiser of signatures of a document granted by the parties. The remaining requirements that guarantee the formal validity of the document refer to the activity of the public authority and the specific modalities and procedures for the declarations of will or the facts to be authentic. If we follow a strict interpretation of the paragraph under discussion, the requirement of the fulfilment of all these extremes appears clear for the consideration of the document as a public document, such as necessary prerequisites not only for its “reinforced” validity as evidence, but, and more rigorously, for whatever other of the effects of the document (registration, enforcement). The problem would exist in the real possibilities and the proceedings and specific manner of undertaking this control on the validity or formal nullity of the public document.

The finding of the lawfulness of the document in the State of origin leads us to having to analyse, in accordance with that law, whether the defect, omission or the unlawfulness observed is really a cause of formal nullity of the document in this State. In this sense, it may occur that the non-compliance by the authority with the regulations on competence at the time of the grant of the document is not a cause of nullity of the document in accordance with the law of the State of origin. The problem may lead also to cases in which a violation of the rules of international public law could be detected, on the extraterritorial exercise of their duties by notaries or consuls, without relying on authorisation or contrary to the provisions of the law of the State where it acts. In these cases, demonstrating a true violation of sovereignty of this State, the primacy of the international public law over the provisions in the law of the State of origin would have to be considered.

447. A different question is that once the controls provided in the paragraphs 2 i), ii) and iii) are fulfilled, the foreign public documents are equivalent to the public documents of the receiving State as they are covered by the “presumption of truthfulness”, related to the facts that appear documented, and from which the special evidential value of the public documents is derived563. Such a privilege, which determines the validity of the document until it is challenged, is a direct consequence of the existence of a public document that has fulfilled required controls related to authorising the authenticity of the same and to authorise that the requirements established by the law of the State of origin so that it produces full evidential value in this State have been observed.

In this context, paragraph 2, iv) necessitates for the validity of the foreign documents in the receiving State that the requirements necessary in the State of origin are met so that the document “makes full proof of the signing and its content”. The privileged position that the public documents have as means of proof requires the intervention of the authority in a certain capacity, in such a way that is not only limited to certifying the signatures of the persons that intervene in the act that is documented but that the evidential value of the public document in the authority is extended to the particular content of the instrument. It therefore departs from a notarial model based on the Latin system. As a consequence we can assume, firstly, the lawfulness of the document in the State of origin in the terms that have been indicated or, at least, an unlawfulness that does not affect its evidential value in accordance with that law; but also, secondly, a control of “equivalence” of the document, in a way that for it to provide “full proof” in the receiving State such condition has to be met in its State of origin. If the test of the equivalence is not fulfilled, this does not imply a rejection to the foreign documents, but a requalification of these in the type of document that is better adapted to its original characteristics (v.gr., with evidential value of private documents).

A system of double control of the evidential value is introduced here: the first, in accordance with the law of the document (the law of the authority that has issued it) for verifying its scope in the State of origin; the second, in accordance with the law of the receiving State, to grant the document, in the place corresponding, the quality of documentary proof in accordance with this law. This double control produces, in turn, a double effect: positive, as the document authorised in the State of origin must have the same effect that would be had by an equivalent document authorised in the receiving State; negative, as the receiving State would not be justified in rejecting or restricting the evidential value of an equivalent document authorised in the State of origin.

The difficulties of the implementation of this control are alleviated depending on the type of document we are faced with, whether it limits to stating facts (affidavits) or incorporates declarations of will (deed of a contract) or legal acts or legal transaction (registration of matrimonial certificates). In these recent cases, more difficulties are presented for the control of equivalence given that the document is subject to a control of legality.

The determining factor at the time of evaluating the “full proof” in litigation is that, in accordance with the law of origin, the document has a hierarchically superior position within the means of proof (it cannot be weakened by other means, as occurs with the evidential value granted to witness evidence in the Anglo-Saxon system). In addition, the particular formulation and scope of the criterion of the “full proof” must bring us to think of a regime of proof appraised, not being submitted, therefore, at the free evaluation of the proof or evaluation together with the other evidential instruments.

448. An adequate comprehension of the scope of the present article requires separating two concepts which, although they are logically connected, are different and have a different regulation in private international law. On the one hand are the means of proof admitted for certifying the existence of a legal relationship and, on the other hand, is the evidential value of these means (that is to say their possibilities of weakening by other means of challenge within the proceedings). Of these two aspects, the present article only governs the second. In effect, when a document fulfils the requirements studied of paragraph 2 of the present article 78 that document may show full evidential value; however, to know if the document, as such, is an adequate means of proof of a certain legal act or transaction is a question that is outside of the scope of application of the provision mentioned. It must be determined then what is the law applicable to the means of proof and everything points to a “proceduralist” qualification of the means of proof, which involves the application of the lex fori for determining the admissible proof, except for specific scopes, for which the application of the lex causae (law governing the relationship) is defended if the means of proof provided in the lex fori weaken the prohibitions established by that law.

449. The contour of the evidential value of public documents, regarding the law of the document, serves to determine among the reported facts the ones that lose their evidential value through the questioning of the truthfulness of the document, and those which, despite being contained in the document, may be questioned through any other means of proof, without necessarily questioning the truthfulness of the document. In particular, aspects such as the fraud in a legal transaction documented enter into this area, as well as defects of consent in its formation or even the intrinsic truthfulness of the declarations of will made by the parties. In general, all these circumstances are outside of the scope of protection of the evidential value of public documents because what is referred to is the validity and effects of the act or transaction documented, a matter which, as is indicated in paragraph 3 of this article 78, will be submitted to its own governing law. As a result, if the law of the document extends the evidential value to elements such as the validity of the document or the legal relationship, and recognises to them a presumption of validity, this will not be taken into account. Thus, the public document may prove, for example, that the parties are appearing before the notary and make certain declarations of will with the intention to conclude a contract; in that case, the document does not serve to prove the particular validity of the contract, because this would require an agreement of genuine (not simulated) willingness and not violated (by error, deceit or intimidation). As indicated, the first point (the fact that the declarations of will had or had not been issued) will lose its validity if the truthfulness of the document is challenged; on the contrary, the second aspect (related to the very validity of a contract) will be verified when the requirements for the valid constitution of the same will be fulfilled, which is tantamount to saying that the legal qualifications made by the notary do not provide proof.

In relation to this, it must also be taken into account that the extent of the evidential value of the public document may vary when it does not contain declarations of will (specific to the act of disposal), but declarations of “science” (specific to testimonial documents or notarial acts: for example, a certificate of proof of life). The reference provided in paragraph 3 is only in relation with the “declarations of will”, and must not be interpreted as a negation of evidential value of the facts documented by the notary, since he does not have any grounds for denying this evidential value in respect of foreign documents, logically, provided that in their State of origin, such documents also provide proof of these facts. The reason why the latter are not expressly provided in the said paragraph 3 is clearly distinguish, regarding the dispositive documents, the proof of the declarations of will from the very existence and validity of the legal transaction concerned. For this reason, it makes sense to mention only this type of documents, since the merely testimonial documents may only prove the said facts, but in no case will they raise a problem of validity of the legal transactions, by which the application of the rules on capacity, substance and form governing these will not be raised.


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