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Cathal Young Notary Public

1-2 Lower Leeson Street, Dublin, Ireland

Telephone: +353-1-6712773

E-mail: cy@yor.ie 

Notary on Call and Apostille Services available

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States that are party to the convention - Apostille Convention

10th International Forum on the electronic Apostille Program (e-APP)

Posted 9/12/2016

10th International Forum on the electronic Apostille Program (e-APP)

Tuesday, 1 November 2016
The Hague, the Netherlands

 

Presentations

Mayela Celis & Brody Warren (HCCH), The e-APP and the International Fora: Progress made and outcomes to date

Roundtable #1: New States and Latest Developments

Carlos Bellei, Chile

Alfred Handler, Austria

Sitora Sultanova, International Finance Corporation, World Bank Group, Tajikistan

Kim Wan LUNG, Hong Kong SAR, People’s Republic of China

Amparo de la Cruz Tamayo Rodriguez and Claudia Esperanza Amaya Vargas, Colombia

Roundtable #2 : The Digital Demand

Dalho HAM and Jung-gu LEE, Republic of Korea

Ingmar Vali, Estonia

Sebastijan Potepan, Slovenia

Kasia McDonald, New Zealand

Steve Roylance, GlobalSign

Roundtable #3: Tomorrow and Beyond

Suren Krmoyan, Armenia

John Fisher, Australia

Frank R. Cimafranca, The Philippines

Christophe Blanchi, DONA Foundation

Closing address: Hrvoje Stancic, InterPARES Trust project: Preservation of Records Entrusted to the Cloud. Perspectives of the InterPARES Trust Project

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Overview of new regulation on beneficial ownership - European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2016

Posted 19/11/2016

Overview of new regulation on beneficial ownership

Introduction

The first sub-paragraph of Article 30(1) of the Fourth Anti-Money Laundering Directive (4AMLD) is transposed by the attached statutory instrument entitled ‘European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2016’ (SI No. 560 of 2016). This statutory instrument requires corporate and other legal entities incorporated within this State to hold adequate, accurate and current information on their beneficial ownership, including details of the beneficial interests held. It has a commencement date of 15 November 2016.

The rationale for transposing this provision in advance of the rest of the 4AMLD is that in order for the central register of beneficial ownership1 to be effective from as early a date as possible after full transposition, corporate entities will need to initially gather the necessary beneficial ownership data and to record same in their own corporate beneficial ownership registers.

Work has commenced on putting in place a central register of beneficial ownership, but such a register is unlikely to be in place till the middle of next year.

Background

The first sub-paragraph of Article 30(1) of 4AMLD requires corporate and other legal entities incorporated within the State to hold adequate, accurate and current information on their beneficial ownership. It reads as follows:

“Member States shall ensure that corporate and other legal entities incorporated within their territory are required to obtain and hold adequate, accurate and current information on their beneficial ownership, including the details of the beneficial interests held”

The purpose of this provision is to enable the determination of the natural persons who are the real owners/controllers of a company. In many cases, this is clear as the legal owners and beneficial owners are one and the same. In other cases, the ownership may be so dilute that it is not possible to identify a particular beneficial owner. It is appreciated that there are many complex company ownership structures in place where determining who the underlying beneficial owners are will not be a simple task.

However, notwithstanding challenges which will undoubtedly arise, there should be no ambiguity that a core objective of this EU Directive is to establish mechanisms to assist designated persons such as banks to conduct CDD in relation to legal entitles and as part of that work, to require companies to identify natural person controlling them, even if doing so necessitates in-depth legal analysis of their ownership structures.

In summary, therefore, there is a requirement for companies to identify the natural person/s who are their underlying beneficial owners on the basis of the definition in Article 3(6) (a) of the 4AMLD (see appendix).

 

Main features of new regulation

The following should be noted in relation to the regulation:

(i) The regulation applies to every corporate or other legal entity except for those:

 

(a) Listed on a regulated market that is subject to disclosure requirements consistent with the law of the EU, or

 

(b) Subject to equivalent international standards which ensure adequate transparency of ownership information.

This exemption from scope is contained in the last three lines of the first paragraph Article 3(6) (a) (i) of the 4AMLD.

(ii) In the regulations, ‘beneficial owner’ is given the meaning provided by Article 3(6) (a) of the 4AMLD, which sets out how beneficial ownership should be determined, so as to identify the natural person or persons ultimately controlling a legal entity through direct or indirect ownership of a sufficient percentage of the shares or voting rights or ownership interest in that entity. A shareholding of 25 % plus one share or an ownership interest of more than 25 % in the customer held by a natural person shall be an indication of direct ownership. A shareholding of 25 % plus one share or an ownership interest of more than 25 % in the customer held by a corporate entity, which is under the control of a natural person(s), or by multiple corporate entities, which are under the control of the same natural person(s), shall be an indication of indirect ownership (see appendix for full text of Article 3(6)(a)(i))

 

(iii) The regulations require every corporate or other legal entity to take all reasonable steps to obtain and hold adequate, accurate and current information in respect of its beneficial owners, e.g. name, d.o.b., address, statement of nature and extent of interest held by each beneficial owner and to maintain within the entity’s records a register of that information.

 

(iv) The regulations provide for a scenario where all avenues for determining the beneficial owner have been exhausted to no avail and in such a case, the names of the senior managing officials of entity will be added to the register.

 

(v) The regulations allow a corporate entity, where it does not already have details of its beneficial owner, to give notice to any natural person whom it believes to be its beneficial owner; once such a notice has issued, the natural person assumed to be a beneficial owner will have a month to reply.

 

(vi) The regulations allow a corporate entity to issue a similar notice to a person whom it has reasonable cause to believe knows who its beneficial owner or owners are. There is however a safeguard in respect of such 3rd party notices which will permit non-disclosure of information where any claim to legal professional privilege could be 

maintained in legal proceedings.

 

(vii) The regulations provide for mechanisms to keep corporate entities’ registers up to date, including notifications and communications concerning relevant changes in beneficial ownership between corporate entities and their beneficial owners;

 

(viii) A duty is also imposed upon a natural person who is a beneficial owner or who ought to know that they are one to notify an entity that they are a beneficial owner if they have not received a notice from the entity requesting this information. There is also a duty on natural persons, in certain circumstances to notify relevant changes in beneficial ownership

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European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2016

CHILE JOINS THE HAGUE APOSTILLE CONVENTION

Posted 17/11/2016

On 16 December 2015, Chile deposited its instrument of accession to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (the "Apostille Convention"). Following the usual procedural steps, the Convention will enter into force for Chile on 30 August 2016, making it the 112th Contracting State to the Convention.

At the ceremony, which took place at the Ministry of Foreign Affairs of the Netherlands (i.e. the Depositary), H.E. Ms María Teresa Infante, Ambassador of Chile, and Third Secretary Mr Juan Enrique Loyer represented the Embassy of Chile. On behalf of the Depositary, Head of the Treaties Division Mr Joseph Damoiseaux and Legal Officer Mr Mark Groen also attended the ceremony. Secretary General Mr Christophe Bernasconi and Legal Officer Mr Brody Warren represented the Permanent Bureau of the Hague Conference on Private International Law (HCCH).

This accession by Chile follows a number of other accessions to the Apostille Convention in recent weeks, which only serve to further highlight the continued interest of States around the world in this, the most ratified/acceded to of all Hague Conventions.

The Government of Chile has also graciously permitted the Permanent Bureau to publish copies of its internal law implementing the Convention. The Regulation itself is available here and other associated amendments are also available here (both are in Spanish only).
Pursuant to Article 12 of the Apostille Convention the Depositary shall give notice to the Contracting States of the accession of Chile.

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The Hague Conference has currently 82 Members: 81 States and 1 Regional Economic Integration Organisation. For the dates of membership, please consult the status table of the Statuteof the Hague Conference.

Posted 17/11/2016

https://www.hcch.net/en/states/hcch-members 

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Fourth meeting of the Apostille Special Commission and 10th e-APP Forum

Posted 17/11/2016

From 2 to 4 November 2016, over 190 experts from over 65 States and international organisations around the world participated in the fourth meeting of the Special Commission on the practical operation of the Hague Convention on Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention). For the first time, a meeting of the Special Commission was directly preceded by an International Forum on the electronic Apostille Program (e-APP). The 10th International Forum took place on 1 November 2016.

The Apostille Convention is, to date, the most widely ratified and acceded to of the Hague Conventions, with 112 Contracting Parties. Its popularity is due in large part to its significance in the lives of citizens and facilitation of cross-border trade and commerce. As a result, the Apostille Convention has proven to be extremely useful and is applied millions of times each year throughout the world. The e-APP continues to facilitate the effective and secure operation of the Convention and has also experienced an impressive expansion in recent years, with over 200 authorities in 29 Contracting Parties now having implemented one or both components of the e-APP.

The Special Commission meeting provided a unique opportunity for delegations to discuss in detail the operation of the Apostille Convention. The Special Commission welcomed the continued increased in global coverage of the Convention and was particularly encouraged by the presence of experts from States which are not currently party to the Convention but are considering accession. Additionally, the experts of the Special Commission made further progress in their consideration of new developments, including in particular the process of authentication of documents executed by intergovernmental and supranational organisations, as well as the practice of issuing Apostilles at diplomatic of consular missions. Experts also considered more general questions regarding the applicability of the Convention and examined options for further simplifying the Apostille process.

The Conclusions and Recommendations of the Special Commission (to which those of the e-APP Forum are annexed) are now available in English, French and Spanish.

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Hague Conventions enter into force for Kyrgyzstan and Serbia

Posted 1/11/2016

Today, 1 November 2016, the 1993 Intercountry Adoption Convention entered into force for Kyrgyzstan, and the 1996 Child Protection Convention entered into force for Serbia.

1993 Intercountry Adoption Convention - Kyrgyzstan

The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993 Intercountry Adoption Convention) entered into force for Kyrgyzstan on 1 November 2016. Having acceded to the Convention on 25 July 2016, Kyrgyzstan became the 97th Contracting State, which now counts 98 Contracting States.

Kyrgyzstan is not yet a Member of the HCCH but a party to two other Hague Conventions, namely the Hague Convention of 1 March 1954 on civil procedure, and the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents.

1996 Child Protection Convention – Serbia

The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children entered into force for Serbia on 1 November 2016. Having acceded to the Convention on 15 January 2016, Serbia became the 43rd Contracting State to the Convention, which now counts 45 Contracting States.

Serbia has been a Member of the Hague Conference since 26 April 2001 and is now a party to a total of 12 Hague Conventions. 

More information is available on the Protection of Children Section of the Hague Conference website, at the following link: <https://www.hcch.net/en/instruments/conventions/full-text/?cid=70>. The details of the Central Authority designated by Serbia under the Hague Child Protection Convention can be found here: <https://www.hcch.net/en/states/authorities/details3/?aid=1048>.

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BRAZIL AND THE APOSTILLE CONVENTION

Posted 16/8/2016

On 14 August 2016, upon the entry into force of the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention) for the Federal Republic of Brazil, the National Council of Justice of Brazil also launched a Category 2 e-Register as part of the electronic Apostille Program (e-APP) under the Apostille Convention. The e-Register permits verification of Brazilian Apostilles either by scanning the quick response (QR) Code of the individual Apostille or entering the alphanumeric code displayed on the Apostille at the following link:<here>.

The Permanent Bureau would like to congratulate the Government of Brazil on this excellent initiative. To date, there are over 200 Competent Authorities in 28 States operating one or both of components of the e-APP, demonstrating the ever-increasing support for the program.

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Apostille - Certifying your public documents when moving around in the Union? Not for much longer!

Posted 13/6/2016

Today around 13 million Union citizens live in a Union country other than their own. Settling in a new country of residence, getting married or taking up a job can be off-putting as citizens have to cope with unnecessary bureaucracy when presenting public documents to public administrations in another Union country.

 

The new Public Documents regulation will slash costs and formalities for citizens that need to present a public document in another Union country. Once the new law enters into force, Union countries will have two years and a half to put all necessary measures in place so that citizens can enjoy the simplification of formalities at the end of this period.

Which documents are covered by the new rules?

Public documents currently subject to the apostille and other administrative formalities and are covered by the new rules concern:-

  • birth
  • a person being alive
  • death
  • name
  • marriage, including capacity to marry and marital status
  • divorce
  • legal separation or marriage annulment
  • registered partnership, including capacity to enter into a registered partnership and registered partnership status
  • dissolution of a registered partnership
  • legal separation or annulment of a registered partnership
  • parenthood - adoption - domicile and/or residence
  • nationality
  • absence of a criminal record and
  • the right to vote and stand as a candidate in municipal elections and elections to the European Parliament.

Will translation of documents from another Union country still be required?

Translation of public documents from another Union country cannot be required if the public documents are in one of the official languages of the Union country where they are presented or in another non-official language accepted by this country. In addition, the regulation introduces multilingual standard forms in all Union languages that can be used by citizens in another Union country as translation aids attached to their public document. In this way citizens can avoid translation requirements.

 

The public documents to which translation aids can be attached are those concerning the following:

  • birth
  • a person being alive
  • death
  • marriage (including capacity to marry and marital status)
  • registered partnership (including capacity to enter into a registered partnership and registered partnership status)
  • domicile and/or residence and
  • absence of a criminal record.

What if some people create fake documents?

The new law offers national authorities up-to-date safeguards against fraud through fast and secure electronic communication between Union countries.

Internal Market Information System (IMI)

 

This structured administrative cooperation will be put in place using the existing Internal Market Information System (IMI), already in use in other areas such as patient rights or cash-in-transit. Concretely, a national authority which has reasonable doubt about the authenticity of a public document will be able to verify the suspicious document with the authority of the Union country which issued the public document directly by using the IMI system. Direct communication between Union country authorities will allow streamlined and effective fraud prevention. In addition, a database with the national public documents will be built-up in the IMI which will enable authorities to compare documents presented to them by citizens with the national examples available in the repository. Finally, the authorities of Union countries will regularly meet in a committee to evaluate and if necessary enhance fraud prevention mechanisms.

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