Companies, like individuals, often find themselves having to execute documents in order to carry out their activities. Contracts, resolutions, powers of attorney, application forms or Companies House documents are just a few of the documents that companies may need to have notarised for different purposes. As some of these documents require a signature to show the consent or approval of the company, it is necessary for it to be represented by one or more individuals who can set a signature on the document on the company’s behalf.
When a document executed by a company in England or Wales needs to be presented to a foreign authority, it is often the case that the document needs to be notarised (i.e. certified by a notary public). The role of the notary is to provide reliable information concerning the document and the company itself so that the foreign authority, notary, or any third party, can rely on the document and the intended transaction or procedure can take place. These are some of the details that the notary should be able to certify:
– The name and personal details of the individual who signs on behalf of the company
– How that person is linked to the company (e.g. whether the signatory is a director or an attorney-in-fact of the company)
– The fact that, at the time of the signing, the signatory is of sound mind and understands the contents and effect of the document
– The current existence and main details of the company (e.g. company name, registered address, registration number, etc.)
– The fact that the document has been correctly executed by the company in accordance with English law
There are rules about who can sign documents on behalf of a company, and the notary will have to make sure that these provisions have been correctly followed before the notarisation can take place. When it comes to companies registered in the UK, the main provisions can be found in the Companies Act 2006, but there are other statutes that may be relevant, such as the legislation relating to powers of attorney and other legal provisions dealing with different types of entities (limited liability partnerships, companies registered abroad, etc.)
The general rule for UK company documents, other than contracts, but especially for documents that are classified as deeds (e.g. powers of attorney) is that these must be executed using one of the following methods:
– By the signature of two directors of the company
– By the signature of a director of the company and the secretary of the company
– By the signature of a director of the company in the presence of an attesting witness
– By the affixing of the company’s common seal in the presence of one or more officers of the company
Few UK companies use common seals these days but, when they do, the affixing of the common seal on a document must also be done in accordance with the company’s prescribed procedure, which is usually to be found in the articles of association of the company.
The reference to the directors of the company means those individuals who have been appointed as ‘statutory directors’ of the company and whose appointment as directors is, therefore, registered with Companies House. A person whose job title within the company includes the word ‘director’ (e.g. a marketing director), but who has not been formally appointed a director of the company and is not listed as such in the records of Companies House, will not have the necessary authority to execute the documents to which the above rules apply.
Apart from the statutory rules summarised above, companies may have their own internal rules, which might establish more restrictive methods for the execution of documents by the company. For instance, a company could decide that the signature of two or more directors will always be compulsory for the signing of a corporate power of attorney, ruling out the other possibilities. When a company has approved its own rules about the signing or execution of documents, these are normally to be found in the articles of association of the company.
Once the notary has identified the individual(s) signing the document and is satisfied that all the correct procedures have been followed, the notary will prepare a notarial certificate in which the notary confirms the necessary information. The certificate is issued with the notary’s signature and seal, and is normally bound securely to the document that it notarises.
Depending on the destination country of the document, it may be necessary to have the notarial certificate legalised with the Hague apostille, which is issued by the Foreign & Commonwealth Office. A legalisation by a chamber of commerce or by a consulate may also be necessary. This will depend on the requirements of the document’s destination country and it is a good idea to double-check any procedures with the authorities of that country. Your notary should also be able to offer guidance regarding the legalisation procedure. You can find some general information about the legalisation of documents here.