Independence of the notary

In major transaction in which a notary is involved, the law firm to which the notary is affiliated and which represents one party may wish to ascertain that (the questionability of) the independence of the notary is beyond doubt. Uncertainty, or rather lack of independence, might affect the validity of the notary’s acts. Contracting parties can create certainty…

In a few jurisdictions, for example the Netherlands, civil notaries[1] work within one firm together with attorneys in law (advocaten) and conduct their notarial work as part of one and the same partnership. Obviously, this raises questions as to the role and duties of the notary; he or she must always act independently, impartially and with integrity, and is under a duty to inform all parties about the consequences of their acts. A notary’s discharge of duties might become questionable if the law firm (i.e. the attorneys in law) assisting one party also provides the notarial services related to the relevant transaction.

In order to avoid the other contracting party questioning the partiality of the notary to take the nuisance value out of it or to create leverage during any discussions after execution of the transaction documents, the following clause can be inserted as a miscellaneous clause:

Notarial independence. Seller and Acquired Company are aware of the fact that the involved notary is associated with [A Lawyers & Suns], the law firm advising Purchaser in connection with the Transaction. In view of the Code of Conduct (Verordening beroeps- en gedragsregels) of the Dutch Royal Organisation of Notarial Professionals (Koninklijke Notariële Beroeps­organisatieKNB), the Parties agree that a notary of [Purchaser’s law firm] shall execute the notarial deed required for the transfer of the Shares.

Obviously, if the notary is engaged in the establishment of a joint venture, the text needs to be amended to reflect the transaction structure.

[1]      A ‘civil notary’ or simply ‘notary’ in the Latin context (i.e. in continental European or South American jurisdiction) must be distinguished from the ‘public notary’ found in common law countries; whereas the former is a qualified legal officer (typically an official appointed by virtue of, and required to act in accordance with, a governmental act or decree), a public notary might be someone who has not even studied law.

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