British Virgin Islands - Notarisation and Legalisation in the BVI

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1 British Virgin Islands - Notarisation and Legalisation in the BVI Introduction A notary has and may exercise certain powers, including: 1. attesting all commercial instruments that may be brought before him for public protestation; 2. administering any oath; and 3. taking and receiving affidavits, for purposes of any court or matter in the BVI, including matters relating to the registration of any instrument where such administration or taking is authorised by statute. Under the Commissioners for Oaths and Notaries Public Act, 2007 (the "Act"), a notary is required to keep a 'notarial acts' log to record certain prescribed notarial acts made, or refused to be made, as the case may be. The notarial seal is required to be affixed to declarations or certificates issued by a notary. Notarisation Notarisation of authenticity of a signature In the notarisation of the authenticity of a signature, the signature in question must be witnessed by a notary public. The signatory must have proper identification to satisfy the notary of his/her identity (eg a valid passport), unless, of course, the signatory is personally known to the notary public. This certificate is not available for overseas clients where the document is not able to be signed in the presence of a notary in the BVI. "I, [NAME], Notary Public in and for the British Virgin Islands, DO HEREBY CERTIFY that [NAME], being known to me / being identified by [I.D description] this day appeared before me and signed the attached [NAME OF DOCUMENT] in my presence and acknowledged the foregoing signature to be [his]/[her] true and proper signature. Dated this [ ] day of [ ] 200[ ]. [NAME OF NOTARY] Notary Public in and for the British Virgin Islands" Confirmation of the authenticity of copies A notary public may also confirm the authenticity of copies of documents. The original document must be produced to satisfy the notary that the copy is a true copy of the original and the notary will make his/her own copies of the original document.

2 Page 2 "I, [NAME], Notary Public in and for the British Virgin Islands, DO HEREBY CERTIFY that the attached [Name of Document] relating to [Name of Company] is a true and correct copy of the original seen by me. Dated this [ ] day of [ ] 20[ ]. [NAME OF NOTARY] Notary Public in and for the British Virgin Islands" Other tasks Sometimes clients require notaries to certify that a signature is that of a certain person, certify that an official or individual has the right to carry out a given act, that someone is in a given position, or that someone has a given competence. Some notaries may be prepared to issue such certificates if the official/individual is able to produce evidence to satisfy the notary of his/her appointment, capacity or competence (eg Register of Directors certified by the BVI company's registered agent, resolutions evidencing appointment and certified by the BVI company's registered agent). However, notaries at Walkers are generally unable to do this. Because in our view some certificates can also effectively be legal opinions, they ought to be given by lawyers and subject to the usual qualifications and assumptions. The notary may, in turn, witness the signature of the lawyer to the opinion. In other limited cases, if may be possible for the registered agent of the company to authenticate a company officer's signature and the notary can then, in turn, witness the signature of the authorised signatory of the registered agent. Notarial services at Walkers Walkers has lawyers in the BVI office who are also BVI notaries. As such, Walkers is able to assist with notarisations where an individual requires a notary to witness his signature, in the presence the notary. For overseas clients, where appearance before the notary in person is not possible, it is invariably the case then that the notary will be asked to assist with confirming copies of non-public documents to be true copies of the originals seen by the notary. As notaries are not licenced by the British Virgin Islands Financial Services Commission to maintain corporate records of companies, a notary will not be able to authenticate the signature of a corporate officer or any other signature of a person not appearing personally before the notary. Such authentication would more appropriately be carried out by the registered agent of the BVI company in question. Clients are therefore encouraged to first discuss their individual needs with their usual Walkers contact. What a notary public cannot certify Section 31 of the Act states that a notary shall not certify a document issued by a public entity, unless the notary is employed by the entity issuing or holding the original version of that document. This prohibition would therefore prohibit a notary in the BVI from certifying, as a true copy, for example, a Certificate of Incorporation or any other document issued and signed by or on behalf of the Registrar of Corporate Affairs. Walkers would be happy to order certified copies of such documents directly from the Registrar of Corporate Affairs. In order to do so, it should be noted that the relevant company must be in good standing. Such documents are already public documents and, therefore, may be apostilled and/or legalised without the intervention of a notary (see more below). Notaries should never be requested to give a legal opinion. For example, a notarial certificate should not refer to directors' resolutions having been "validly passed" or "duly executed". Legalisation Formalities of legalisation Foreign governmental authorities or private companies/individuals receiving documents from the BVI may want confirmation that the documents are authentic usually when they are to be used in some official capacity. The appropriate method of confirmation is to have the documents legalised.

3 Page 3 Legalisation is the general term given to the formality by which the diplomatic or consular agents of a country in which a document is to be produced, certify the authenticity of a signature, the capacity in which the person signing a document has acted and, where appropriate, the identity or the seal or stamp which it bears. It is, therefore, less comprehensive than notarisation and never implies acceptance or approval of any words, statement, certificate or other document preceding the legalised signature. Legalisation requirements are dictated by detailed evidence rules of the receiving jurisdiction and can vary according to the context of the transaction. There are two methods by which a document may be legalised (apostille and authentication) and which method is appropriate will be determined by the country in which the documents will be used. Apostille The Hague Convention of 5 October 1961 (the "Convention"), had the effect of abolishing the requirement for legalisation of certain documents executed in the territory of one contracting State and produced in the territory of another contracting State. The Convention is applicable in the BVI. Under this Convention, the only formality that may now be required to certify the authenticity of signatures, the capacity of signatories and the identity of the seal or stamp as mentioned above, is the addition of a certificate known as an "apostille" issued by the competent authority of the State from which the document emanates. The apostille is affixed to the document on behalf of the Governor or other authorised person (invariably a senior Public Servant) of the BVI. Most apostilles in the BVI are, in fact, now signed by the Deputy Governor or the Registrar of the High Court. After apostilling, these documents can be forwarded directly to the client for use. A form of apostille is as follows: APOSTILLE (Convention de La Haye du 5 octobre 1961) 1. Country: Tortola, British Virgin Islands This public document 2. has been signed by 3. acting in the capacity of 4. bears the seal/stamp of CERTIFIED 5. at Road Town, Tortola, British Virgin Islands 6. the 7. by Deputy Governor 8. No. 9. Seal/stamp: 10. Signature The apostille will only be affixed to: 1. documents which bear the original signature of a government official (as in the case of documents signed by the Registrar of Corporate Affairs); or

4 Page 4 2. documents which have been certified by a BVI Notary. Accordingly, if for example the document is a Tax Certificate signed by the Commissioner of Inland Revenue in the BVI, it is not necessary to have this notarised before being apostilled. If, on the other hand, you have a power of attorney executed on behalf of a private company, a copy of this must be certified by a Notary as a true copy before being apostilled. Authentication If the country in which the document is to be used does not appear on the list of countries which are a party to the Convention, then we may be requested to arrange for further legalisation of a document. Whilst authentication is available in some countries, this service is not available in the BVI. Further legalisation by the relevant consulate/embassy. Often, a client will require that a document be further legalised by the Consulate/Embassy of the country in which the document is to be produced. The most convenient procedure is to courier the apostilled document to a documentation specialist in London, with the request that they have the relevant Consulate or Embassy further legalise the document and with the further request that they forward the document in accordance with any special forwarding instructions. Fees and disbursements of such documentation specialists can be considerable and, accordingly, and in keeping with Walkers' policy in this regard, an advance of fees will usually be required to cover anticipated fees and disbursements. Legal fees, disbursements and timing Fees will usually be requested in advance. Likely minimum legal fees, disbursements and time scales are set out below as a guide (please obtain a fees estimate at the time of the instructions): Service Required Average Legal Fees Average Disbursements Timing from receipt of documents Notarisation US$200 per document (min) US$25 per document plus courier charges. Same day - next day Apostilling US$300 per document (min) US$40 stamp duty plus disbursements noted for notarisation above. 2 days Legalisation with Embassy/Consulate US$ (avg) per document (inclusive of disbursements payable to the UK Government and relevant embassy) 2-3 days to prepare package to be sent to documentation specialist. 10 days - 2 weeks at documentation specialise October 2013

5 Page 5 For further information please refer to your usual contact or: British Virgin Islands - John Gosling, Partner john.gosling@walkersglobal.com Dubai - Daniel Wood, Partner daniel.wood@walkersglobal.com Hong Kong - Denise Wong, Partner denise.wong@walkersglobal.com London - Jack Boldarin, Partner jack.boldarin@walkersglobal.com +44 (0) Singapore - John Rogers, Partner john.rogers@walkersglobal.com The information contained in this memorandum is necessarily brief and general in nature and does not constitute legal or taxation advice. Appropriate legal or other professional advice should be sought for any specific matter.