Corporate notarial services in Cork

Further reading from this practice: Blockchain and Irish Law. For Hugh's background and qualifications, see Hugh Phelan.

A corporate file in cross-border practice rarely turns on a single document. It turns on a stack. Board resolutions authorising the transaction. A power of attorney appointing the signatory. Certified copies of the constitutional documents. Specimen signature attestations. Certificates of incumbency. Certified copies of the certificate of incorporation, the CRO printout, and any change of name or registered office. By the time the closing arrives, the notarial bundle for an Irish company doing business in continental Europe can easily run to twenty or thirty instruments.

This is a working note on what a corporate notarial file looks like in Cork practice, what each document does, and where the drafting and authentication tends to go wrong.

The categories of corporate notarial work

Corporate notarial work falls, in my experience, into five recurring categories.

The first is authority. A foreign counterparty wants to know that the person signing on behalf of the Irish company actually has the authority to bind the company. The supporting documents are the company's constitutional documents (memorandum and articles, or constitution), a board resolution recording the decision to enter the transaction and the appointment of a signatory, and a power of attorney or specimen signature page identifying the signatory.

The second is identity. The signatory must be identified to the notary by original photographic identification and the notary's certificate will record what was exhibited. Where the signatory is signing as a representative of the company, the corporate authority must accompany the personal identification.

The third is incumbency. A certificate of incumbency is a statement signed by an officer of the company, typically a director or company secretary, identifying the current directors and officers, the company's registered office, and the company's standing in the Companies Registration Office. A notarised certificate of incumbency is often required by foreign banks, registrars and notaries before they will accept any other document from the company.

The fourth is content. Some corporate documents — affidavits of standing, declarations of solvency for cross-border merger purposes, statements of beneficial ownership — must be notarised in the same form as personal affidavits, with the additional layer that the signatory is acting on behalf of the company.

The fifth is certified copies. Foreign authorities often require certified copies of original corporate documents rather than the originals. The notary's certificate that the copy is a true and faithful reproduction of the original, examined by the notary, is the standard authentication. A certified copy by the company secretary is not always accepted; a notarial certified copy is.

The board resolution problem

The board resolution is the document I most often see drafted badly. The resolution should record, in clear terms, the directors present, the matter resolved, the resolution itself, and the appointment of any signatory or attorney. The resolution should be dated, signed by the chairperson or company secretary, and entered in the company's minute book. The notarised copy attached to the bundle should be a certified copy of the entry in the minute book, not a fresh signed document produced for the purpose.

The reason for the discipline is that the foreign counterparty will sometimes ask, months or years after the closing, for a copy of the original resolution. If the resolution exists only in the bundle that was notarised, and no entry exists in the minute book, the corporate record is incomplete and the foreign authority's request cannot be answered. The minute book is the company's contemporaneous record and the notarial work should track it.

The other common error in board resolutions is the absence of a clear quorum recording. Most Irish company constitutions require a minimum number of directors present for the resolution to be valid. A notarised resolution that does not record the directors present and the quorum requirement met is exposed if challenged later. The drafting takes a few additional sentences and avoids a category of problem.

The certificate of incumbency

The certificate of incumbency is a creature of foreign — particularly American and offshore — practice. Irish company law does not require it. Irish companies do not maintain it in the ordinary course. But the foreign authority asks for it routinely, and the company must produce one for the closing.

The contents are standard. The full registered name of the company, the registered office address, the company number, the date of incorporation, the current directors with their addresses, the company secretary with their address, the registered share capital and shareholding structure where required, and a statement that the company is in good standing on the register. The certificate is signed by a director or the company secretary, dated, and notarised.

The certificate is typically accompanied by a CRO printout obtained within twenty-four hours of the closing, certified by the notary as a true and faithful printout of the public register on that date. The combination of the company-signed certificate and the dated CRO printout is what foreign authorities are usually seeking, and the combination is more authoritative than either alone.

Specimen signatures

Where the corporate signatory is signing instruments that will be presented to foreign banks or registrars over an extended period, a specimen signature certificate is often useful. The certificate is a notarised document on which the signatory signs three or four times in the notary's presence, with the notary's certificate confirming that the signatures are those of the named individual, signed before the notary on the stated date, and that the individual exhibited specified identification.

The specimen signature is then held by the receiving authority — typically a foreign bank — and any future instrument signed by the same individual is checked against the specimen. The arrangement saves the cost and time of notarising every individual instrument over the life of a transaction or facility.

The Apostille and embassy chain

Almost every document in a corporate notarial bundle requires an apostille from the Department of Foreign Affairs in Dublin. The Department's office handles bundles, and a typical corporate closing bundle is sent to Dublin together, apostilled together, and returned to Cork together. The cost of apostilling a bundle is the per-document fee multiplied by the number of documents. The economies are administrative rather than financial. The detail of the apostille process is set out in the apostille process in Cork.

Where the destination is a non-Hague Convention state, the apostille is replaced by legalisation through the receiving state's embassy in Dublin or London. The chain is longer, the cost is higher, and the timetable is less predictable. For documents destined for the UAE, China and other states that have acceded to the Convention in recent years, the apostille route is now available. For the remaining non-Convention destinations, the embassy chain is the only option.

The closing day

The corporate closing day is rarely the day the notarial work is done. The notarial work should be complete, apostilled and physically delivered to the closing solicitor several days before the closing. The closing day is reserved for the substantive transaction documents, which may themselves require notarisation, but should not be the day the company first attempts to assemble the authority bundle.

A working pattern that works: the substantive transaction documents are drafted and agreed in the weeks before closing. The authority bundle — board resolution, power of attorney, certificate of incumbency, specimen signatures, certified copies — is notarised and apostilled in the week before closing. The closing-day documents are notarised on the closing day, with the apostille step deferred to the days following. This sequencing reduces the risk of a closing-day notarial problem and gives the foreign counterparty a complete authority bundle before the closing begins.

For a related working note on notarial work for property transactions that cross borders, see notarial work for cross-border property transactions. To book a notarial appointment with Hugh Phelan, call (021) 489-7134 or visit phelansolicitors.com.