To prove that a power of attorney on behalf of a foreign entity was granted by persons authorised to represent the entity, an excerpt from the commercial register or a notary’s certificate is usually submitted. But what about countries where there are no commercial registries and notaries have no power to confirm representation?
In registration proceedings in Poland (e.g. in the National Court Register, the pledge register, or the land and mortgage register), the rule is that when filing a power of attorney with the court, the attorney must also prove that the power of attorney was duly granted, i.e. that the statement on grant of the power of attorney was made by persons who have the right to represent the entity granting the power of attorney. With regard to Polish jurisdiction, pursuant to Art. 89 §1 of the Civil Procedure Code, submission of a document showing the authorisation, or a certified copy of the document, is not required if the court can verify the authorisation on the basis of a list or other register to which it has electronic access. This is the case with the commercial register in Poland, part of the National Court Register.
The case is different when showing the authorisation of signatories of powers of attorney granted by foreign entities. Then, it is necessary to consider what documents to present to the Polish court to prove that the power of attorney was granted on behalf of a foreign entity by persons having the right to represent that entity.
Excerpt from a commercial register
The basic document specifying the rules of representation and persons authorised to represent an entity is usually a commercial register. Many countries in the world (and almost all in the European Union) have such registers, but they may work differently in different countries. For example, some may be available online, and then a printout from the system has the force of an official document, while others may only be obtained from a court or other competent authority. In such case, obtaining an excerpt from the register can be time-consuming. Such issues should always be discussed with the foreign principal.
Also, it should be remembered that since an excerpt from the commercial register is a foreign official document, to use it in dealings with Polish administrative bodies or before a Polish court, as a rule it will have to be legalised (unless this requirement has been waived on the basis of an international agreement concluded by Poland), or an apostille clause must be obtained (when the document was issued in a state that is a party to the Hague Convention; see also the article on legalisation of documents). Such an excerpt from the register, together with the apostille (if required), should then be translated by a sworn translator into Polish, and then the complete set of documents can be submitted to the Polish court where the power of attorney will be filed.
Certification by a notary
Another way to demonstrate the correct authorisation is for a foreign notary notarising the power of attorney to confirm that the persons who granted the power of attorney were duly authorised to do so. As a rule, in most jurisdictions notaries are competent to perform this task. However, the nature of the notarisation should be carefully determined with the principal, as in practice, in many jurisdictions, there is either a simple certification of signatures or a full notarisation. Generally, with a simple certification, the notary merely states that he or she was presented with a power of attorney and that certain persons signed it. Certainly, such a notarisation does not meet the requirements for demonstrating the authority of signatories for the needs of the Polish courts. Therefore, it should be ensured that when a foreign notary certifies signatures and provides a notarial certification of the power of attorney, the notary also describes in what capacity the persons signing the power of attorney act for a given entity, and states that the power of attorney has been duly signed in accordance with the rules of representation of the given entity. Sometimes, in some countries (e.g. in the UK), notaries also add that the power of attorney is valid and binding.
How is it done in America?
But a problem arises when, in a given country, there is no commercial register on the basis of which the representation of a given entity can be proved, and notaries do not have the authority to confirm the signatories’ representation.
This occurs in the United States. There is no single legal system in the US, as each state is governed by its own laws. From the author’s professional practice, it appears that there are no commercial registers for corporations outside of the states of Massachusetts and Louisiana. The companies’ representation rules are found in various internal corporate documents and are not included in any formal public register. Additionally, as a general rule, in all states, US notaries are not authorised to attest to the proper representation of the signatories of the documents they certify, and cannot do so.
Therefore, it should be considered whether there are any documents demonstrating the empowerment of US entities that can be presented to Polish courts. As mentioned above, the rules of representation of US companies are included in various internal corporate documents. Depending on the state law governing a given entity, it should be determined which internal documents address the rules of representation and list the persons authorised to represent the entity.
Most often, this information will be contained in a document called a “secretary’s certificate.” This document may be issued by the company secretary, appointed by the board of directors. In practice, in business dealings in the United States, the company secretary serves as a registrar and an internal body confirming the representation of the company. It must be taken into account that a secretary’s certificate is not an official document issued by public authorities, but only an internal document prepared by the company’s bodies. Unfortunately, generally in most of the states, we are unable to obtain any other document demonstrating the rules of representation. Thus, when filing with the Polish court a power of attorney granted in the US, one possible way to demonstrate the authority of the persons granting the power of attorney seems to be to attach to the notarised and apostilled power of attorney a document called a secretary’s certificate, bearing an apostille clause.
In short, the process of obtaining a correct power of attorney from abroad requires careful analysis and coordination. One needs to determine the best way to obtain confirmation of authorisation in a given country. Apart from commercial registers analogous to the Polish National Court Register, the most effective path will most often be the certification of representation by the notary who notarises the power of attorney. But then the expectations, and what exactly the foreign notary should certify, should be clearly stated. If neither of these options is available in the given country, alternative solutions, such as the secretary’s certificate, should be considered.
Mateusz Tusznio, adwokat, Banking & Project Finance practice, Wardyński & Partners