Execution, Notarisation, Apostillisation and Legalisation of Documents in BVI
The British Virgin Islands ("BVI") is a world-leading jurisdiction for company incorporation. As most of the companies incorporated in the BVI carry out their day-to-day operations outside the BVI, the corporate documents of these BVI companies are often required in these foreign jurisdictions as evidence of incorporation and continuing existence for various reasons, including the opening of bank accounts, establishing credit facilities with banking and financing institutions and satisfying the due diligence requirements of service providers.
This article focuses on the manner in which the corporate documents of BVI companies may be executed and the process for notarising, apostilling and legalising documents executed on behalf of BVI entities.
Execution of Deeds and Other Documents
Contracts entered into by a business company incorporated in the BVI may be validly entered into as a deed or an instrument under seal if it is either:
(a) sealed with the common seal of the company and witnessed by a director of the company or such other person who is authorised by the memorandum and articles of association to witness the application of the company's seal; or
(b) it is expressed to be, or is expressed to be executed as, or otherwise makes clear on its face that it is intended to be a deed and it is signed by a director or by a person acting under the express or implied authority of the company.
Other documents executed by a BVI business company are validly executed if the persons executing the documents have apparent or ostensible authority to do so in accordance with the constitutional documents of that company and the BVI Business Companies Act, 2004 (as amended).
Entities incorporated or formed in the BVI often require their corporate documents to be notarised, apostilled and/or legalised. It is therefore important to note the general requirements for eligibility, and the powers of a notary public in the BVI (a "BVI Notary Public"). It is equally important to understand the limitations on the powers of a BVI Notary Public as they relate to the notarisation, apostilling and legalisation of documents relating to BVI domiciled entities.
Eligibility and Powers as a BVI Notary Public
In order to be qualified to be appointed as a BVI Notary Public, a person must meet the requirements stipulated in section 18 of the Commissioner for Oaths and Notaries Public Act, 2007 (the "Act").
A BVI Notary Public has powers of:
(a) drawing, passing, keeping and issuing all deeds of contracts, charter-parties and other commercial transactions;
(b) attesting to commercial instruments that may be brought before the notary for public protestation;
(c) a commissioner for oaths under the Act; and
(d) performing such other acts or duties as are required to, or may be performed, by a BVI Notary Public.
Powers of a BVI Notary Public in Relation to Notarisation of Documents
Copies of Documents
Copies of documents which have been executed on behalf of an entity domiciled in the BVI may be notarised by a BVI Notary Public as a true copy of the original document. The BVI Notary Public should be presented with the original of the document from which the copy was taken in order for the notary to certify the copy of a document as a true copy of the original document.
Signatures on Documents
Usually, a BVI Notary Public would be asked to certify the signature of a person who is present in person and executing the document in the presence of the BVI Notary Public. In this way, the notary can be reasonably satisfied, by way of identification documents, that the person executing the document and the person reflected on the identification documents are one and the same. Where the person executing the document to be notarised is not present in person, the notary would usually certify the signature of the person executing the document if the person and signature are otherwise known to the notary.
Where the BVI Notary Public cannot verify the signature of a person, either due to the fact that the signature is not known to him or the person executing the document is not present before the notary, then any other person who is able to certify the signature of the person executing the document and whose signature is known to the notary, can execute a letter certifying the signature of the person executing the document ("Letter of Certification"). Once the signature is certified in this manner, the BVI Notary Public can then notarise the Letter of Certification with a declaration that the signature of the person executing the Letter of Certification is known to him.
Documents in a Foreign Language
In some cases, a BVI Notary Public may be requested to notarise documents that are either in a foreign language or a combination of English and a foreign language. The ability of each BVI Notary Public may vary in this regard. In such cases, a BVI Notary Public will need to consider his powers under the Act and be guided accordingly as to whether, as a matter of fact, he can, in his capacity as a BVI Notary Public, notarise documents in a foreign language.
Whilst requests to have original documents notarised are relatively small in number, such requests can and in practice are sometimes made. In these circumstances, the BVI Notary Public would usually certify that the document which he is notarising is an original document, provided that he is so satisfied that the document he has reviewed is in fact an original document.
Limitations of a BVI Notary Public
A BVI Notary Public does not have the power to:
(a) notarise his own signature;
(b) notarise a document in which he is individually named or has an interest from which he will directly benefit by a transaction involving the document; or
(c) certify a document issued by a public entity relating to a matter such as a birth, death, or marriage certificate, unless the notary is employed by the entity issuing or holding the original version of that document.
A BVI Notary Public may also refuse to act in circumstances which, in his opinion, are suspicious and not warranting the type of notarial act demanded by his client.
Further Steps after Notarisation
In some cases, all that is required is notarisation of the documents by a BVI Notary Public. In other cases, some BVI entities may require the further step of legalisation of the notarised documents. The word "legalisation" is generally used to mean the process by which a document is certified as valid for use in a country other than the country in which it is executed.
Legalisation by Apostille
The Hague Convention (the "Convention") has abolished the time consuming chain of legalisation (discussed further below) and pursuant to the Convention, two basic steps are now required to legalise documents:
(a) the document must be notarised; and
(b) an apostille issued by the country where the document is notarised must be affixed to the document.
However, only countries which are contracting parties to the Convention can rely on "legalisation" of documents by way of apostillisation.
A full list of signatories and dependent territories which are parties to the Convention can be found on the official website of the Hague conference on Private International Law: www.hcch.net/index_en.php?act=conventions.status&cid=41.
The Convention has been extended to dependent territories of the United Kingdom, including the BVI, and provides that each contracting state will be exempt from legalisation of documents which fall under the Convention.
The designated authorities competent to issue apostille certificates in the BVI are the Governor, Deputy Governor, Registrar of the High Court, Registrar of Corporate Affairs at the BVI Financial Services Commission and the Director of the BVI Financial Services Commission. As a matter of practice, requests for apostillisation on behalf of BVI entities are usually sent to the Deputy Governor's Office. The BVI authorities generally operate a same day or next business day turn around service for apostillisation of documents.
Maples and Calder provides notarial services and also provides the service of arranging and liaising with the BVI authorities for apostillisation.
Legalisation in this context means only the formality by which the diplomatic or consular agents of the country in which the document has to be produced, certifies the authenticity of a 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.
Where a country is not a party to the Convention and it cannot take advantage of the apostille process, the standard route for legalisation is notarisation of the document by a BVI Notary Public, where for example, the document is not already certified by a Government or other quasi-public body (e.g. the Registrar of Corporate Affairs), followed by certification of the BVI Notary Public's signature by the Deputy Governor's Office in the BVI. Once the document is certified, the next step is for it to be apostilled by the Deputy Governor's Office in the BVI and then forwarded to counsel in the United Kingdom to arrange for legalisation before the Foreign and Commonwealth Office and finally by the relevant country's consulate.
Maples and Calder also provides a one-stop-shop service for legalisation of documents, including collection from the relevant consulate and onward delivery of the legalised documents to end users.