President of the Chamber of Notaries: „Civil law faces constant pressure from propagandists of common law”
President of the Chamber of Notaries: „Civil law faces constant pressure from propagandists of common law”
The President of the Lithuanian Chamber of Notaries Marius Strackaitis says that the system of Latin notariat being practiced in Lithuania for more than 20 years guarantees that in the field of civil law priority of law and a preventive function of justice are ensured in the country.
According to him, in the context of the European Union Lithuania looks well and actively participates in activities of the Council of the Notariats of the European Union.
“Everywhere in the world and Europe civil law faces constant pressure from propagandists of traditions of common law”, M. Strackaitis noticed.
An interview with M. Strackaitis is presented in this issue of “Legal News”.
In 2015 new obligations on certification of transactions by a notary become effective. Critics state that additional requirements can be harmful for investments. Do you agree?
New legislative regulations have passed all stages of approval by Lithuanian institutions. They received both positive and negative evaluations. The Lithuanian Chamber of Notaries has also participated in a dialogue of state institutions. During discussion of offers on amendments of laws by the Government, its subordinate institutions and Seimas the Chamber of Notaries has presented its positions and comments within its jurisdiction. However, we always adhere to a principle not to comment adopted legislative acts but to comply with them.
Could you express your opinion on how amendments of legislative acts in 2015 are to affect stock trade, bill of exchange usage and conclusion of loan agreements?
It would be speculative to predict consequences of amendments of acts. Everything is to be found out from practice. We try to prepare well for innovations. The Chamber of Notaries will seek to ensure that notaries certify transactions assigned to them by new legislative acts in a professional, prompt and quality manner.
When evaluating changes in 2015 critics stated that notaries are not experts in practice of consolidation and purchase transactions, so they will have to hire experts in order to properly perform their duties while certifying more complex stock transactions. Is that so? What challenges are faced here?
To ensure customers do not feel discomfort, and this new function provided for by the state is performed smoothly at the end of 2014 the Lithuanian Chamber of Notaries organizes advanced training courses for notaries related to bills of exchange, shares, their transfer, and etc. Such training will also be continued in 2015. Furthermore, as it is typical for cases of legal innovations, the Lithuanian Chamber of Notaries is going to promptly analyze notarial practice on this subject and possible relevant judicial practice. Learned lessons will be summarized in recommendations mandatory for notaries.
Businessmen say they see a lot of ambiguities with regard to new order, for instance, what should be done if someone wishes to sell shares of a Lithuanian company abroad or parties choose to apply laws of a foreign country to a transaction?
It has been a long time since state boundaries stopped being an impediment to conclusion of agreements for transfer of securities.
Being persons authorized by the state, notaries can only conduct their activities in the territory of the Republic of Lithuania. However, after a notary carries out a legal analysis he can fairly certify an agreement of purchase of shares of the Lithuanian company if parties choose to apply laws of the foreign country.
Undoubtedly, it is more difficult to certify such transaction at least because the notary should be well aware of both application of provisions of international private law and content of applicable foreign law. It should also be noted that parties should have a reasonable interest to choose to apply laws of the different state. They should not be chosen only in order to avoid a notarial form mandatory in Lithuania. Moreover, it would not be a ground to refuse application of imperative legal provisions of the state, which such agreement is related to.
In case if shares of the Lithuanian company are sold abroad, laws of that foreign country will apply. However, it should be noted that if shares are paid by real estate situated in Lithuania, in both cases laws of a place of property location, i.e. laws of the Republic of Lithuania, will be applied to transfer of real estate. Such transaction should be made in accordance with a notarial form.
Thus, in this situation a subscription agreement should be made by following both laws of a particular foreign country and Lithuanian laws, which regulate the moment of transfer of title to a real thing and other issues of proprietary right.
It should also be noted that communication of customers and notaries in Lithuania is to be performed by using advanced information technologies, so notary services are easily accessible and convenient.
This year you were re-elected for a new three-year cadence. As you stated you are going to seek improvement of notaries’ competencies, quality of their services and growth of customer service culture. What issues could be faced in this field?
Community of notaries is a reflection of our society. Though we are proud of high rates of public confidence, we still sometimes get complaints from customers unsatisfied with actions of notaries. If we talk about competence of notaries as well as quality and culture of customer service, it is essential to emphasize that one of the most intensively acting structure of the Chamber of Notaries is the Notary Assessment Committee. We give much attention to regularly organized assessment of notaries and sometimes when responding to complaints we are also obliged to organize extraordinary assessments of notaries. It is a complex examination of notary’s work and his knowledge. There were cases in the past when notaries were not qualified and were not able to continue performing their activities. The Court of Honour of the Chamber of Notaries is also working in an active way. This year it has held several meetings regarding actions of honour brought against notaries by the presidium of the Chamber of Notaries or the Minister of Justice. Regular advanced training seminars also make a significant positive impact on improvement of quality of notary work. Each notary must every year attend a certain number of lectures prepared and given by legal professionals of higher education institutions.
This year more than 200 notary offices have conducted their activities in Lithuania and more than 250 notaries have been working there. How do we look like in the context of neighbouring countries?
Everywhere in the world and Europe civil law faces constant pressure from propagandists of traditions of common law. We represent civil law and look well in the international context. The system of Latin notariat being practiced in Lithuania for more than 20 years guarantees that in the field of civil law priority of law and a preventive function of justice are ensured. We look rather good in the context of the whole European Union and actively participate in activities of the Council of Notaries of the European Union, which we joined 10 years ago.
In Lithuania the mandatory notarial form is applied to a majority of transaction types, so assignment of more functions to notaries by state lawmakers shows reliability and effectiveness of the notarial system.
In some neighbouring countries the mandatory notarial form is applied to a lesser extent, so in many cases it is difficult for notaries to prove their necessity to society.
Main notarial actions in a majority of European countries applying Latin notariat are similar, but extent of actions performed by notaries in different countries slightly differs. For example, in Latvia notaries, besides common notarial actions, may manage divorce affairs and in Estonia notaries may certify documents with Apostille as well as certify conclusion and dissolution of marriage, and starting from 2015 they will also certify partnership agreements. In some countries, for instance, in Germany, documents certified by notaries have both stronger evidential force and can be directly executed.
What is your forecast for the year 2015? What are we going to see from the aspect of notarial activities?
Trends are clear: to strengthen the profession, to improve its prestige and reliability, to maintain and improve qualification of notaries. We will seek to learn new functions assigned to us and perform them scrupulously.
We entered the era of electronics. Currently, “eNotariatas” system is being created at the expense of our notariat, which will allow us to improve relations between a customer and a notary, but it will still keep up to a principle of notarial control.
We will talk about it in more detail after the system is created and implemented.
Thank you for the interview.