On 1 January 2020, the Notary Act, which was passed by the Landtag (the Liechtenstein parliament) on 3 October 2019, came into force in Liechtenstein. In the past years it was repeatedly pointed out by interested circles that due to the increasing internationalisation of legal transactions Liechtenstein should provide for a legal framework that such documents should be drawn up and issued by Liechtenstein notaries. For certain declarations of intent, legal transactions and documents, most European countries provide notarial certification or, respectively, the notarial authentication as a formal requirement.
The Liechtenstein notary is based on the idea of the lawyer-notary, which means that the admission as a Liechtenstein notary occurs through the profession as an attorney or through a successfully completed training as a notary-to-be since the notarial profession is generally compatible with the attorney’s profession.
In order to serve foreign clients, the new Act provides that authentications under foreign law are also possible. The Liechtenstein notary can draw up deeds under foreign law if (i) he/she understands the legal acts to be certified, (ii) is able to explain them to the parties, (iii) has an overview of the foreign law, and is therefore able to check the legal transaction to be notarised with regard to its compatibility with the foreign law.
So far, authentications and public notarisations were effectuated at the Princely Court of Justice (Fürstliches Landgericht), at the Office of Justice (Amt für Justiz), and the municipalities.
- Aspects of the Liechtenstein notarial profession related to European and international law
Regarding the attractiveness of the Liechtenstein notarial services to foreign clients, the provisions of the Notary Act concerning the drawing up of deeds under foreign law (art. 39 et seqq.) in particular are of considerable interest. In this respect, it should be noted that in its ruling in C-54/08 of 24 May 2011, the Judgment of the European Court of Justice (ECJ) decided that the preservation of the requirement of nationality for the access to the notarial profession constitutes an impermissible discriminating restriction. Moreover, the ECJ held that services provided by notaries do not involve the exercise of public authority, which would constitute a recognised exception to the principle of freedom of establishment.
Liechtenstein is a signatory state to the Hague Convention on the Exemption of Foreign Public Documents from the Requirement of Authentication, which has been ratified by more than 50 states. Therefore, the prerequisites for the recognition notarial certifications and authentications issued by a Liechtenstein notary under international law are already fulfilled.
- Admission to the profession
Liechtenstein decided to structure the notary profession as as lawyer-notary (following the relevant regulations in the canton of St. Gallen). Admission as a Liechtenstein notary is acquired either by a three-years’ practice as lawyer together with an oral exam or in the absence of a lawyer’s practice by way of written and oral exams. As said, both professions are, in principle, compatible and may therefore be exercised in parallel. Since the notary is a profession in its own right, a separate disciplinary law has also been created. In the future, a Chamber of Notaries will be responsible for safeguarding the reputation and honour of the profession.
- No obligation to engage a notary
The introduction of the profession of the notary does not imply an introduction of an obligation to refer relevant legal acts to a notary. In other words, it is still up to each individual to decide whether they wish to consult a notary, or have authentications or certifications be carried out by the Princely Court or the Office of Justice.
- Rights and obligations of notaries
Using the professional title of a public notary is only permitted to persons registered in the list of notaries. The notaries exercise their profession independently in their own name and at their own responsibility. They are submitted to integrity and honourableness in their professional and non-professional conduct. Furthermore, the notary is subject to an obligation of secrecy which in judicial or other official proceedings is structured analogously to the attorney’s right to professional secrecy. Finally, the notary must take out liability insurance with a minimum insurance sum of CHF 5 million per year. Notaries are entitled to stipulate their fees freely, whereby the Chamber of Notaries will issue fee guidelines.
- Certifications and authentications
The notary has a duty to instruct and to verify the legal content and the significance of the deed and the legal transaction to be notarised. When drawing up notarial documents, the notary must verify the identity of the persons involved and, if necessary, their powers of representation. Natural persons need to identify themselves through an official ID. The identity of legal entities must be verified on the basis of certified extracts from the commercial register. If such a check cannot dispel all doubts, the notary must refuse to certify.
The notary must also verify the legal capacity of the natural persons involved. If there is any doubt in this respect, the notary may demand medical proof that the persons involved are legally competent. IA doctor’s opinion may be required be kept for ten years.
The notary is conflicted if he/she is involved in a legal transaction themselves or are married or related to a party to the legal transaction. The same applies to factual and registered partnerships Further, a conflict of interest exists in the case of a notary advising a party as an attorney in a legal transaction which they are to act as notaries.
When drafting a deed, the notary must ensure that the deed complies with the will of the contracting parties.
The notary also has the competence to certify legally relevant facts and legal relationships, in the recording of which there is an interest worthy of protection. In this respect, the notary has a duty of verification. They must ascertain what exactly the interest and the legal significance of such notarisation is.
It is also possible for the notary to draw up deeds under foreign law. For this purpose, they must either be able to understand the intended legal acts as well as the foreign law themselves so that they are able to draft the deed as requested by the parties. Alternatively, a Liechtenstein notary can draw up a deed under foreign law if each party is represented by an attorney who is admitted in the jurisdiction under whose law the foreign deed is to be drawn up. In that case, the notary’s general duty to advise the parties on the legal content and significance of the deed and, if necessary, to draw attention to any flaws and contradictions, does not apply.
The law also provides for the possibility to draw up affidavits before a Liechtenstein notary. If such declarations are made under foreign law, the above provisions shall apply with regard to the making of such declarations. In any case, the declaring person must appear before the notary in person.
For the use in or the preparation of foreign legal proceedings, notaries can record pre-trial depositions of witnesses. Again, the formal requirements under the foreign law must be observed. The Liechtenstein notary cannot use any means of coercion; witnesses that are to be interrogated must be made aware that their participation can only be voluntary.
Finally, so-called enforceable deeds can also be drawn up before notaries; these have the same legal quality as a settlement drawn up in court.
Apart from the drawing up of public deeds, a Liechtenstein notary may carry out the following authentications:
- Authentication of signatures and hand signals
- Authentication of copies
- Authentication of extracts from documents
- Certification of translations
- Date certification
- Authentication of counterparts.
WGB expect to be able to provide notarial services after the completion of the necessary formalities in the fourth quarter of 2020