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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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Red tape cut if you move to another EU country

Posted 10/6/2016

Bureaucratic procedures for Europeans moving to another EU country for study or work are being cut, following a vote by Euro-MPs Thursday endorsing a deal previously struck by Parliament and Council.

Currently, citizens moving to or living in another EU country must obtain a stamp to prove that their public documents (such as a birth, marriage or death certificate) are authentic.

Under the new regulation, this stamp and the bureaucratic procedures linked to it will no longer be required when presenting public documents issued in one EU country to the authorities of another EU country.

To avoid the need for translation, new multilingual EU forms are to be attached to the documents.

More than 14 million EU citizens live in an EU Member State other than their home country. To marry, to declare the birth of a child or to prove a clean criminal record, they need to go through breaucratic procedures which can be tedious.

The MEPs' vote takes "a first step towards reducing these bureaucratic hurdles, by abolishing the costly and burdensome 'apostille' requirement and introducing multilingual standard forms", says Parliament's rapporteur Mady Delvaux MEP.

The new rules would do away with administrative formalities such as the “legalization” or “apostille” certification of “public” documents such as those proving civil status, parenthood or nationality. MEPs and the Council had agreed to extend the rules’ scope to include documents proving the capacity to marry or to enter into a registered partnership. Documents certifying the absence of a criminal record would also be accepted in other EU member states without further legalization procedures.

The rules would also cover documents that citizens living in another member state must produce if they wish to vote and/or stand as candidate in European or municipal elections in the member state where they reside.

To avoid the need for translation, new multilingual EU forms are to be attached to the documents. These concern: birth, 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.

The regulation deals only with the authenticity of public documents, so Member States will continue to apply their national rules concerning the recognition of the content and effects of a public document issued in another Union country.

The regulation will soon be published in the EU Official Journal and be brought into effect gradually, so as to apply in full from 2019.

 

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CCBE Position Paper on the Judgments Project concerning jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (No. 2)

Posted 18/3/2016

The Council of Bars and Law Societies of Europe (CCBE) represents the bars and law societies of 32 member countries and 13 further associate and observer countries, and through them more than 1 million European lawyers.

The CCBE responds regularly on behalf of its members on policy issues which affect European citizens and lawyers. The European Private Law Committee of the CCBE has actively followed developments concerning the Judgments Project on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of The Hague Conference on Private International Law. The comments set out in this paper are based on the HCCH „Report of the Fifth Meeting of the Working Group of the Judgments Project (26-31 October 2015)” and the proposed Draft Text resulting from this meeting (“Prel.Doc. No 7A). This text largely reflects the ideas and concerns expressed by the CCBE in the “CCBE Position Paper on the Judgments Project concerning Jurisdiction and the Recognition and Enforcement of Judgments in civil and commercial matters (No. 1)” dated November 29, 2013. In view of the various amendments that have been made since then to the proposed future text of the Convention, the CCBE wishes to make the following comments:

 

1) Scope of application According to Art. 1, the Convention shall apply to the recognition and enforcement of judgments relating to civil or commercial matters. According to the CCBE, the exclusion of revenue and customs is appropriate, as well as the exclusion of administrative matters.

 

The word “other” used in the English version in the expression “other administrative matters” should be deleted. As stated in its previous position paper, the CCBE considers that the inclusion / exclusion of certain decisions is an appropriate approach1 : • “Provisional and protective measures”: At the present stage, such measures do not fall under the judgment definition contained in Art. 3 para. 1 of the draft („An interim measure of protection is not a judgment”): only judgments as such shall be recognized and executed (see Art. 1). The CCBE would welcome the inclusion of provisional decisions in the scope of application of the convention, provided certain conditions are fulfilled: provisional measures should only be included if the defendant has been summoned to appear and had an effective possibility to defend his rights. Furthermore, in order to ensure sufficient protection, the provisional measures to be included may be listed exhaustively. As an example, we would welcome the inclusion of: - the seizure of moveable assets - the freezing of bank accounts 1 Reference is made to the “Report on the Second Meeting of the Working Group on the Judgments Project” of February 2014 (http://www.hcch.net/upload/hidden/2013/jdgm2014report.pdf), p. 1 2 • “Default judgments” shall be subject to specific provisions (Art. 4 para. 2, Art. 11 para. 1 lit. b), but on the principle they are subject to the provisions of the proposed Convention, as they are not expressly excluded (Art. 1 f.). • “Judicial settlements” shall be an equivalent to judgments under specific conditions (Art. 9). This categorisation is in line with the CCBE position paper.

 

2) Exclusions from scope The CCBE welcomes the removal of consumers’ contracts and employments contracts from the exclusions. The CCBE notices that the exclusions are not strictly the same as in the Convention on choice of courts agreements from 30 June 2005 but agrees with the differences in the scope of application arising therefrom. The addition of Art. 2.4 (exclusion of “agreements to refer a dispute to binding determination by a person or body other than a court”) is welcomed, as well as the exclusion relating to arbitration and related proceedings.

 

3) Definitions For the judgments definition, see 1). The addition of persons against whom counterclaims have been brought into the “defendant” definition is welcomed by the CCBE.

 

4) General provisions The CCBE suggests that the English text for “produit ses effets” in Art. 4.3 (“has effect”) is replaced by “is effective”.

 

5) Bases for recognition and enforcement The new draft gives a very different approach from the previous text on this issue: whereas most conditions to be fulfilled for recognition were previously foreseen as additional grounds for refusal in Art. 5.3 (“jurisdictional filters”), they are now drafted as basic conditions for recognition and enforcement in Art. 5.1. The CCBE welcomes this approach as it seems simpler and allows a better understanding of these provisions. This new approach maintains a kind of indirect jurisdictional rules into the proposed Convention, which the CCBE had recommended. The CCBE is also pleased to note that some of its recommendations in this respect have generally been followed. It nevertheless wishes to make the following additional remarks: 1. a) The habitual residence of the party against whom recognition or enforcement is sought might be the most usual case and is to be welcomed. So does the addition of a)ii) about the case where the person against whom recognition or enforcement is sought is its successor. The CCBE recommends adding the term “legal” before “successor”. b) Where the person against whom recognition (or enforcement) is sought was the claimant in the initial proceedings, enforcement will in most cases be sought for the counterclaim. This is in line with the addition of counterclaims into Art. 3. However, this addition must not lead to the recognition of judgments based solely on claimant’s jurisdiction. The CCBE does not see such danger with the current wording but asks that special attention is given to this provision in case of re-drafting. c) No comments. 3 d) Where consumers or employees are concerned, judgments where the defendant expressly consented to the jurisdiction of the court of origin may only be included if it is ensured that the defendant has been instructed about the consequences of such consent. The CCBE considers that Art. 5.2.a) is not sufficient for a proper protection of consumers and employees. e) Contractual obligations: the CCBE believes that the current wording may give rise to multiple difficulties, quite well known within in the EU under Art. 5.1. of the Brussels Regulation (EU 44/2001, now replaced by Art. 7.1 of EU 1215/2012). The determination of the “place of performance” of the obligation ruled upon by the judgment “under the parties’ agreement or under the law applicable to the contract” (which is still to be determined by the judge of the State where recognition is sought as per his own rules of International Private law) may be a difficult issue, giving rise to satellite litigation. So does the question whether “the defendant’s activities in relation to the transaction clearly did not constitute a purposeful and substantial connection to that State”. Given that there is no Supreme Court ruling on such matters, Courts of Contracting States may reach different interpretations of such wording. The CCBE suggests simplifying this provision. At the very least, in relation to the agreement on the place of performance, reverting to the previous drafting of Art. 5.3 f) may be a solution: [This agreement should derive from the provisions of the contract.] For the most common contracts as sales and services contracts, the solution set forth in Art. 7.1 of the Brussels I bis Regulation may be a source of inspiration. [“For the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: — in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered, — in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided”]. Besides, the CCBE agrees with the deletion of the exception regarding obligations consisting in the payment of money previously included at the end of Art. 5.3 f (“This shall not apply if the contractual obligation consists of a payment of money, unless such payment constituted the main obligation of the contract”).

 

6) Exclusive bases The provisions of Art. 6 a) for patent, designs, trademarks and similar rights are welcomed by the CCBE. In Art. 6 b), regarding tenancies of immovable property, the CCBE doubts whether the recognition of only such judgments rendered in the state of location of the property make sense – independently from the minimum period of 6 months, which is also questionable. In cases where the initial tenant of the immovable property moved to another state, there is no reason why a claim should not be brought in his new state of residence and the judgment should not be recognised and enforced in other contracting states. This is even more important as the effect of Art. 6 is reinforced by the new Art. 15.

 

7) Grounds for refusal The CCBE had expressed the wish that all grounds for refusal contained in Art. 9 of The Hague Convention on Choice of Courts Agreements concluded on 30.06.2005 shall be taken over in the proposed Convention. Art. 7.1 of the proposed Convention contains a list of such refusal grounds, reflecting the criteria expressed by the CCBE. However, all grounds for refusal give only a possibility, not a duty to refuse recognition or enforcement. For the sake of security and foreseeability, the CCBE would suggest making most of the refusal grounds mandatory. 4 Under Art. 7.1.d), the CCBE would suggest adding “unless the agreement was null and void under the law of the State of the chosen court” in order to be in line with Art. 9 lit. a of the Convention on Choice of courts agreements. The additions made in Art. 7.2 regarding pending proceedings before courts of the requested State are to be welcomed on the principle, but the current wording makes its application quite uneasy. The CCBE suggests a simplification. Regarding “punitive damages” and „exemplary damages“ addressed under Art. 9, the CCBE had suggested to add an additional ground for refusal. This has been done under Art. 8 para. 1, which foresees a special ground for refusal if the damages attributed to a party do not compensate a real loss suffered by the party. Para. 2 states: “The court addressed shall take into account whether and to what extent the damages awarded by the court of origin serve to cover costs and expenses relating to the proceedings.”). This might allow the recognition of decisions awarding damages higher than the actual harm suffered, when the surplus is meant to indemnify the party for the costs of the process. The CCBE points out that the indeterminate character of the exception may allow misuse and the reintroduction of some kind of punitive damages. The text should therefore be more restrictive.

 

8) Preliminary questions Art. 8 provides for answers to two kinds of questions: - How to deal with rulings on preliminary questions on matters excluded under Article 2 (1) or on matters for which Article 6 provides for exclusive jurisdiction, if the court is not the one referred to in Art. 6; then the “ruling on that question” shall not be recognized or enforced under the Convention. - How to deal with judgments which were “based on a ruling” on matters excluded under Art. 2 (1) or on a matter referred to in Art. 6 if the court is another than the one referred to in Art. 6; the recognition or enforcement “may be refused”. For the sake of clarity, the CCBE would suggest that the refusal ground mentioned in Art. 8 (2) is inserted into Art. 6. The issues of preliminary questions addressed under Art. 8 (1) should remain ruled in a separate provision. However, the CCBE observes that in some cases, depending on the structure of decisions in some Contracting States, there might be difficulties to decide whether the issue at stake was ruled as a “preliminary question” or whether the judgment was “based on a ruling” on such matters (whereby “rulings” are not defined in the Convention draft). Given the fact that both cases are ruled in a different way, there should be a definition helping to distinguish them.

 

9) Documents to be produced Art. 11 enumerates the documents necessary in order to obtain recognition or enforcement. One of them is the certified translation of the decision, which is welcomed by the CCBE. 10) Equivalent effects The CCBE also wishes to express its support for the addition of a possibility to adapt the relief provided by the judgment when this relief is not available in the requested State.

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Department of Foreign Affairs - Consular and Apostille Services

Posted 17/2/2016

Consular Services Move

From Monday, 22 February, Consular Services, including the public office issuing authentications and legalisation of documents, will operate from Knockmaun House.

There will be no break in continuity of consular services over the course of the move.

All enquiries regarding this service can be made by calling 01 408 2174.

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Australia launches a Category 2 e-Register

Posted 16/12/2015

On 14 December 2015, the Department of Foreign Affairs and Trade of the Commonwealth of Australia launched a Category 2 e-Register as part of the electronic Apostille Program (e-APP) under the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention). The e-Register is available at https://orao.dfat.gov.au/pages/verifyapostille.aspx.  

The Permanent Bureau would like to congratulate the Government of Australia on this fantastic initiative. To date, there are over 200 Competent Authorities in 26 States operating one or both of components of the e-APP, demonstrating the ever-increasing support for the program.

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NAMIBIA JOINS THE 1993 INTERCOUNTRY ADOPTION CONVENTION

Bahrain issues its first e-Apostille

Posted 8/12/2015

Bahrain issues its first e-Apostille

On 3 December 2015, the Ministry of Foreign Affairs of Bahrain issued its first e-Apostille as part of the electronic Apostille Program (e-APP) under the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention). Bahrain had already put in place a Category 2 e-Register in 2014.

The Permanent Bureau would like to congratulate the Government of Bahrain on these excellent initiatives. To date, there are over 200 Competent Authorities in 25 States operating one or both of components of the e-APP, demonstrating the ever-increasing support for the program. 

For more information, see the Categories of e-Registers, the List of Operational  e-Registers, and the Implementation Chart of the e-APP

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BRAZIL JOINS THE HAGUE APOSTILLE CONVENTION

Posted 2/12/2015

On 2 December 2015, Brazil 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 Brazil on 14 August 2016, making it the 111th Contracting State to the Convention.

Pursuant to Article 12 of the Apostille Convention the Depositary shall give notice to the Contracting States of the accession of Brazil.

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Introduction to Anti-Money Laundering

Posted 1/6/2015

The law in Ireland on anti-money laundering (AML) and the countering of the financing of terrorism (CFT) is governed by The Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, as amended by Part 2 of the Criminal Justice Act 2013 (“the Act”). The Act transposes European Union Law on AML and CFT (the Third Money Laundering Directive (2005/60/EC) and its Implementing Directive (2006/70/EC)) into Irish Law.

The law on AML and CFT reflects, both at the European and Irish level, the recommendations made by the Financial Action Task Force (“FATF”), which is a specialist international organisation that concentrates on the international fight against money laundering and terrorist financing. Ireland has been a member of FATF since 1991.

The Central Bank of Ireland (the “Central Bank”) is the competent authority in Ireland for the monitoring and supervision of financial and credit institutions’ compliance with their obligations under the Act.  The Central Bank is empowered to take measures that are reasonably necessary to ensure that credit and financial institutions comply with the provisions of the Act.

Key features of the Act

The Act sets out legal provisions to ensure technical compliance and effective implementation of international standards relating to AML and CFT. The Act:

  • Defines broadly the offence of money laundering.
  • Defines designated persons and beneficial owners that come under the provisions of the Act.
  • Provides for Directions, Orders and Authorisations relating to investigations.
  • Sets out customer due diligence, reporting, internal policies and procedures, training and record keeping requirements of designated persons.
  • Provides for monitoring of designated persons.

Designated persons should adopt a risk based approach when carrying out its obligations under the Act.

Ireland is subject to monitoring by FATF of its international obligations concerning AML and CFT through mutual evaluation reviews. The next review of Ireland’s compliance with the FATF Recommendations is due to take place in 2016.

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The E-Notary Public Is Slow to Catch On

Posted 20/5/2015

When it comes to closing on a mortgage, nothing is final until the notary public says so. Charged with officially affirming the transaction’s legitimacy, notaries apply their legal stamp of approval after verifying the borrower’s identity and willingness to enter into the loan.

By necessity, notarization has always been a face-to-face process. And even as mortgage lending moves online, enabling borrowers to shop and apply for loans via the Internet, as well as upload documents and apply their signatures, the signing of the final documents requiring notarization still makes it necessary for the borrower to be in the same room with the notary.

Unless, that is, the notary is in Virginia. As of 2012, Virginia became the first state to allow certified notaries to use technology to notarize documents remotely, with the signers being anywhere in the world. Signers must appear before the notary by means of a live, two-way video conference, and the notary must keep a recording of the meeting.

“It’s one of those things where the time has come,” said John B. Harris, the senior vice president for product management at Signix, an electronic signature service based in Chattanooga, Tenn., that offers remote notarization. “The notary profession is due for that injection of technology,” he said.

Mr. Harris maintains that remote e-notarization actually strengthens security because it uses third-party databases to verify the identity of the borrower. After providing the last four digits of their Social Securitynumbers and their dates of birth, the borrowers must correctly answer questions affirming personal specifics like previous addresses or vehicles they owned.

“The paper notary looks at an ID, like a driver’s license or a passport, but they’re not using any database to verify it,” Mr. Harris said. “And recording adds a layer of evidence.”

The National Association of Secretaries of States, the office that generally oversees notaries at the state level, has embraced e-notarizations where the notary applies an electronic seal to digital documents. But citing the importance of the notary’s role in fraud prevention, the organization’s standards for e-notarization still require that signer and notary be in the same room.

Bob Rice, a founder and the chief executive of World Wide Notary, an e-notarization technology provider based in Vernon, Tex., shares the concern about identity theft. A notary who meets with a signer in a Web conference cannot, for example, touch or scrutinize a driver’s license to see if it is authentic, he said.

“So I wouldn’t be perfectly sure you are who you say you are, or that you aren’t signing under duress,” he said.

Also, Mr. Rice added, much of the country doesn’t have access to the high-speed Internet required for remote notarizations. World Wide Notary supplies technology that enables a notary to download closing documents onto a secure laptop before meeting with a borrower in an out-of-the-way location, sign everything electronically while off line, and then upload the documents upon their return to the office.

But Rick Triola, the president and chief executive of NotaryCam, a global online notarization platform, said more states are gradually considering allowing remote notarizations as more officials see that technology gives notaries better tools to securely identify people.

“We aggregate 33 billion records from 10,000 different sources,” Mr. Triola said. “It’s amazing what this data knows about us.”

So far, he said, NotaryCam has done legally binding transactions in all 50 states and in 64 countries.

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European Parliament backs stronger rules to combat money laundering and terrorism financing

Posted 20/5/2015

Brussels, 20 May 2015

Today, members of the European Parliament adopted new rules to help fight money laundering and terrorist financing in the EU, one of the key actions in the European Security Agenda presented last month (see IP/15/4865).

VÄ›ra Jourová, the EU's Commissioner for Justice, Consumers and Gender Equality, welcomed the vote in Parliament which marked the final adoption of the anti-money laundering package: “Serious and organised crime is driven by profit - tracing the illicit proceeds of crime back to the criminal networks is essential both to detect, prosecute and dismantle those networks and to seize and confiscate their criminal wealth. The new anti-money laundering rules adopted today will help us follow the money and crack down on money laundering and terrorist financing."

The new strengthened European anti-money laundering framework will contribute to the fight against terrorist financing and money laundering by:

  • facilitating the work of Financial Intelligence Units from different Member States to identify and follow suspicious transfers of money and facilitate the exchange of information;
  • establishing a coherent policy towards non-EU countries that have deficient anti-money laundering and counter-terrorist financing regimes;
  • ensuring full traceability of funds transfers within, to and from the European Union.

 

The Commission will supplement this legislation by working on a supranational assessment of risks. Both texts fully take into account the 2012 Recommendations of the Financial Action Task Force (FATF) (see MEMO/12/246), the international standard-setter in the field, and go further on a number of issues to promote the highest standards for anti-money laundering and to counter terrorism financing.

Work must now begin to ensure this framework, which focuses on greater effectiveness and improved transparency, is quickly and effectively put in place. The Commission will work with Member States to speed up the process of implementation of the new Anti-Money Laundering requirements.

 

Background

On 5 February 2013, the Commission adopted a proposal for a Fourth Anti-Money Laundering Directive (IP/13/87) which consists of two legal instruments:

  • A Directive on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing;
  • A Regulation on information accompanying transfers of funds to secure "due traceability" of these transfers.

The package received the agreement of Ministers in the Council in June 2014 (STATEMENT/14/197). In December 2014, the Parliament and Council reached political agreement on the rules (see news), which was formally endorsed by the Council in February 2015 (see STATEMENT). The Parliament and the Council have adopted the final text.

Following the recent terrorist attacks in Copenhagen, Paris and Brussels, the Council and the Commission agreed to take decisive action against terrorist financing. To enhance the efficiency of the new anti-money laundering rules, the two institutions call for further efforts towards speeding up national implementation of those rules, strengthening cooperation on terrorist financing between the Member States' Financial Intelligence Units, and addressing terrorist financing risks via the EU supranational risk assessment. It is also of utmost importance that coordinated action at international, European and national level to tackle terrorist financing is as effective as possible. The Commission will be examining further actions on countering terrorist financing in the context of implementing the recently adopted European Security Agenda.

 

Next steps

The publication of the package in the Official Journal of the EU is due for around June-July 2015. A process to guide Member States in implementing the Directive into national law will be put in place over the coming months (the implementation period is two years).

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