105 - American Bar Association

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AMERICAN BAR ASSOCIATION
SECTION OF INTERNATIONAL LAW
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION
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RESOLVED, That the American Bar Association supports modernization and
simplification of the requirements and procedures related to verification of signatures in
cross-border contexts by amending uniform and model laws to take
advantage of cloud-based and other technological progress and by increasing reciprocal
recognition among jurisdictions.
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REPORT
This resolution supports modernization and simplification of the requirements and procedures
related to verification of signatures in cross-border contexts, i.e., verification of signatures
affixed to documents signed in one country for use outside that country’s borders. As explained
below, the existing requirements and procedures are based on treaties concluded in 1961 and
1963, as well as statutory frameworks, that do not take fully into account modern developments
in best practices, particularly the use of electronic communications. For practical reasons
associated with timelines for implementation and the priorities of state actors, treaty revision is
unlikely to be the preferred path forward. Yet, the regulation of signature verification and
notarial practice touches on territorial sovereignty, and reciprocal recognition of modernized and
simplified procedures will be a key element of successful and appropriate reform. One key
aspect of this resolution is to assure cross-border recognition, while avoiding placing those
involved in the verification process in jeopardy of infringing foreign territorial sovereignty.
BACKGROUND
National legal systems have long accounted for the need to verify the authenticity of signatures
issued in one country for use in another. These systems rely on verifying the identity (and
sometimes capacity) of a signatory through a notary public or other individual similarly
exercising governmental authority to witness and attest to the act of one affixing one’s signature.
These systems of verification, witnessing and attestation increase public trust in the authenticity
of the act and reduce the risk of another governmental authority questioning the legitimacy of the
act.
Within the United States, this verification, witnessing and attestation process is implemented
through a notary public, under frameworks established generally by state law. Within civil law
systems, the role of attestation is merely one aspect of a civil law notary’s function. In the civil
law countries, as well as in some common law countries, the responsibilities of notaries are much
greater than those of a US notary public, such notaries being subject to greater regulation, having
greater educational qualifications, and charging greater professional fees. Whether in civil or
common law jurisdictions, the verification of identity is accomplished predominantly by the
attesting person’s examination of identity documents to verify that the signatory is the person
who he or she claims to be. In many countries, the notary may also be asked to examine
corporate documents necessary to establish the signatory’s power and capacity to execute the
instrument.
National legal systems vary in determining when signatures must be verified through exercise of
public authority. In the United States, verified and authenticated signatures are typically
required in connection with conveyances of real property interests to be recorded in public
records and in connection with transactions requiring sworn oaths. Various civil law
jurisdictions require verification and authentication for these acts and for various others,
including formation of corporate entities, donations and the giving of a security interest, even
over collateral that is not real property.1
1
See Patrick Del Duca, CHOOSING THE LANGUAGE OF TRANSNATIONAL DEALS: PRACTICALITIES, POLICY AND LAW
REFORM (American Bar Association, 2010).
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Two treaties provide widely-used frameworks in connection with the cross-border recognition of
attestation and verification of a signatory to a document: the Hague Convention of October 5,
1961, Abolishing the Requirement of Legalisation for Foreign Public Documents, and the
Vienna Convention on Consular Relations of April 24, 1963. Both of these treaties predate the
widespread use of electronic signatures and, as a result, their current application does not yet
embrace fully the opportunities afforded by widely accepted technological developments of the
global market economy. Note however, the Hague Conference on Private International Law’s eAPP program, implemented in part in over 150 jurisdictions, provides for the issuance of
electronic apostilles and online registers. This program was undertaken based on the conclusion
of the 2003 Special Commission of the Hague Conference recognizing that the Apostille
Convention
could
be
applied
to
electronic
media
without
amendment,
http://www.hcch.net/index_en.php?act=text.display&tid=37.
In the more than 50 years since the ratification of the two seminal treaties, the emergence of the
internet, the electronic “cloud” that hosts information in a secure environment, and the
acceptance of electronic signatures admitted by best business practices warrant the
modernization and simplification of the requirements and procedures related to verification of
signatures in cross-border contexts.
EXISTING INTERNATIONAL AGREEMENTS
The Hague Convention of October 5, 1961, Abolishing the Requirement of Legalisation for
Foreign Public Documents (more commonly referred to as “The Hague Apostille Convention”),
is currently in force in 104 countries. The treaty provides for the recognition of public
documents, including the attestation of signatures if defined as such in the law of the state in
which they are executed, by means of an apostille, a certification issued by a governmental
authority which authenticates the public nature of the seal and signature of the person executing
the document. Through The Hague Apostille Convention, an attestation of a signature by a
California notary public, for example, shall be recognized in any country party to the
Convention, provided the attestation is presented to the relevant authorities accompanied by an
apostille completed in accordance with Convention requirements, pursuant to which a recognized
authority affirms the authenticity of the seal and signature of the California notary public that
executed the document.
Non-treaty mechanisms predate The Hague Apostille Convention with respect to the recognition
of extraterritorial attestations of signatures. The so-called “legalization” of a signature may be
accomplished outside the Conventions by the certification of an attestation by an official of the
country in which the signature is given and attested, subsequently authenticated by a consular
official from the country in which the attestation is to be used. As an example, if a document is
witnessed by a notary in Canada, which is not party to The Hague Apostille Convention, for use
in Mexico, the attestation would require an attestation by a Canadian official within its foreign
ministry followed by “legalization” of a Mexican consular official in Canada.
The Vienna Convention on Consular Relations (“Vienna Convention”) of April 24, 1963, defines
a framework for consular relations between independent countries. The treaty, in force in 176
countries, defines permissible consular intercourse as part of its objective to further business and
economic relations between countries. Consistent with that goal, consular officials may, within
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the consular district in which they exercise their functions, attest to the validity of signatures for
purposes of their country’s legal system. In general, within the legal systems of countries in
which this treaty is in force, the provisions of domestic law that would otherwise accord a
monopoly to the domestic attestation process do not apply to consular officials in the exercise of
their functions. The Vienna Convention does not expressly deal with cross-border recognition of
notarial acts; rather, it merely provides that the performance of notarial acts is a recognized
consular function. It is the law of the state in which the document is to be used that gives effect
to a notarial act performed by one of its consular officials. In the United States, that is generally
a matter for state codes and rules of evidence, e.g. California Civil Code §1183.2
THE CASE FOR MODERNIZATION AND SIMPLIFICATION
The increasingly transnational marketplace does not confine itself to the established mechanisms
of verification of the validity of signatures, and the attestation of such verification through public
authorities. Movements of goods and services, and capital across borders have long presented
challenges in providing and recognizing attestations of the validity of signatures across borders.
A basic example of the need for modernization, in addition to the challenges of commercial,
property and family matters, extends to the role of legal interns.3 The cost barrier and the
absence of a viable alternative highlight an “access to justice” issue for persons endeavoring to
serve these multilateral entities.
Secure electronic signatures are increasingly employed for the conclusion of contracts of many
types. The United Nations Convention on the Use of Electronic Communications in International
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For discussion of law and practices, including current developments, pertaining to verification of signatures in
jurisdictions including the United States, England and Wales, France, Germany, Italy, German, Mexico, Scotland,
and Switzerland, see Cross-Border Signature Verification – Civil Law Notaries & Notaries Public – Hague
Apostille Convention – Vienna Convention on Consular Relations, EUROPE UPDATE, Issue no. 4 (March 2013),
available at http://apps.americanbar.org/dch/committee.cfm?com=IC825000.
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Due to the increasingly global nature of law practice, law students have begun to participate globally in internships
and externships in law firms, international organizations and other opportunities which are intended to make these
students more responsive to the increasingly global demand for legal services not restricted to one’s own national
borders. When those law students later apply for admission to practice in a state of the United States, the relevant
authority typically requires the applicant to obtain an affidavit from their former international “employer” describing
work performed and whether they met at least minimum standards expected for a law student. Many of these interns
are supervised in the international setting by attorneys or legal professionals whose professional licenses (if they are
required to have one) or other legal credentials are not furnished by an authority in the United States.
Those bar applicants who seek to take the New York State Bar examination, for example, are required to have that
statement “notarized,” consistent with the U.S. understanding of a “notary’s” function. For countries in which the
person giving an attestation is a degree-bearing, licensed professional equivalent to an attorney, the solemnity of the
act, the professional responsibility—and the fees that necessarily follow—are typically far greater than in the U.S.
If we consider that a multilateral institution such as an international tribunal may have as many as 80 to 90 interns
rotating every three months, the “notarial” burden is significant. Adding to this burden is a cost charged by a local
notaris (for attestation in the Netherlands) of between €50 and €300, far exceeding the budgetary constraints of a
publicly-funded institution, its individual staff attorneys or the volunteer interns. These circumstances force an
honest assessment of whether the cost may deter U.S. law students from accessing important educational
opportunities or publicly-funded entities from giving these students the chance. The problem worsens as some
publicly-funded entities report that on occasion they are unable to obtain appointments with U.S. consular officials
due to security restrictions or workload limitations to perform the attestation.
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Contracts (2006), which applies to the use of electronic communications in connection with the
formation or performance of a contract between parties whose places of business are in different
countries, seeks to overcome barriers in domestic legislation and international treaties to the use
of electronic signatures. The American Bar Association adopted resolutions urging U.S.
ratification of this convention in 2006 and 2008.4 Private sector, for-profit businesses and
services such as Symantec, McAfee, Rightsignature, Echosign (Adobe), Docusign, Silanis
Technology, Sertifi, and others, provide various technical and operational frameworks for
assurance of the validity of an electronic signature.
The United Nations Centre for Trade Facilitation and Electronic Business (“UN/CEFACT”), part
of the Economic Commission for Europe (“ECE”), is in the process of updating its
Recommendation 14, “Authentication of Trade Documents”, to promote elimination of
unnecessary signature requirements in trade documents or, in the alternative, conversion to
electronic signatures. And, the International Telecommunications Union (“ITU”) has been
engaging in an EU-funded project to enact a wide variety of electronic commerce (including esignature) laws in countries in the Caribbean, Africa, and the Pacific.
Increasingly, domestic legislation contemplates recognition of such electronically signed
documents for legal purposes within a country. UNCITRAL’s two model laws, the 1996 Model
Law on Electronic Commerce and the 2001 Model Law on Electronic Signatures, have been
adopted in a limited, but growing number of countries.
In the United States, the Uniform Electronic Transaction Act (“UETA”), promulgated by the
Uniform Law Commission in 1999, has been the basis of legislation in each of the states (indeed
47 states, the District of Columbia and Puerto Rico), with the exception of Illinois, New York
and Washington, which have legislated independently. UETA applies only where the parties
agree to conduct a transaction by electronic means, and provides for the legal equivalence of
electronic records and signature to their paper counterparts. As to the required activity of a
notary public, UETA provides that “[i]f a law requires that a signature be notarized, the
requirement is satisfied with respect to an electronic signature if an electronic record includes, in
addition to the electronic signature to be notarized, the electronic signature of a notary public
together with all other information required to be included in a notarization by other applicable
law.” It does not eliminate the other requirements of notarization, such as presence of the notary
in the room with the person signing the document or verification of the person’s identity.
The federal Electronic Signatures in Global and National Commerce Act (“E-SIGN”), enacted in
the United States in 2000, also includes the following provision on notarization and
acknowledgement:
“If a statute, regulation, or other rule of law requires a signature or record relating
to a transaction in or affecting interstate or foreign commerce to be notarized,
acknowledged, verified, or made under oath, that requirement is satisfied if the
electronic signature of the person authorized to perform those acts, together with
all other information required to be included by other applicable statute,
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See 2006_AM_303 and 2008_AM_100.
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regulation, or rule of law, is attached to or logically associated with the signature
or record.”
(This E-SIGN provision is superseded by state law for states that have adopted the 1999 version
of UETA.) In addition to promoting the use of e-signatures, contracts and records domestically,
E-SIGN requires the Secretary of Commerce to promote the acceptance and use of electronic
signatures internationally, and to take a nondiscriminatory approach to electronic signatures and
authentication methods from other jurisdictions.
The historical justification for the existing restrictions related to attestation and verification of
signatures seems tied to a world of restricted communications, isolated legal systems, and limited
literacy even among merchants. In the current globalized economy, such limitations increasingly
burden economic activity and place potential restraints on trade. The question is whether, in
today’s 21st century market place, prior solutions remain adequate. Whether the circumstances
in which notarization is required can be constrained should be evaluated and the legal
mechanisms governing notarization merit revisiting.
Within the United States, the Revised Uniform Law on Notarial Acts of the Uniform Law
Commission and the Model Civil Law Notary Act of the National Association of Civil Law
Notaries would serve as foci of normative modernization and simplification. The goals of this
Resolution could be achieved by the American Bar Association and other interested parties
conferring with the Uniform Law Commission to explore how the Revised Uniform Law on
Notarial Acts might be modified to modernize and simplify cross-border notarization of
documents for use in the United States.
The purpose of such modification is to accomplish notarial acts in which the individual whose
signature is to be notarized (the “Applicant”) is not physically present before the notarial officer,
but rather personal appearance is instead achieved via electronic means.
To fulfill this purpose, the existing requirement of an Applicant’s personal appearance that is
considered to require a physical presence before a notarial officer would be relaxed provided that
certain conditions are satisfied. Such conditions include the reliability of the electronic means to
be used for the notarial act and the reciprocity between jurisdictions where the notarial officer
and the Applicant are respectively present when the notarial act is performed. The electronic
means for this purpose must enable the notarial officers to discharge their duties and obligations
and perform their rights properly under the Revised Uniform Law on Notarial Acts. Such
electronic means would be considered potentially to include live or synchronous video
technology, and in case of the affixation of an electronic signature, also audio presence. As to the
provision for reciprocity, this modification is intended to enable the Applicant to obtain a
notarization regardless of the Applicant’s location, that may be within the state where the
notarial officer is located and the notarial act is to be performed, or in another state or country,
all without exposing the Applicant or the notarial officer to sanction by a jurisdiction that might
deem all or part of the conduct to be an infringement of its territorial sovereignty.
On an international level, the modernization and simplification of norms pertaining to the
attestation and verification of signatures might, if member states approve, be undertaken through
negotiations at the Hague Conference on Private International Law, with a view toward
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complementing the work currently underway in respect of implementing electronic apostilles.
Other international fora that present opportunities for useful normative development and reform
include supranational and regional organizations, such as the European Union, the Organisation
pour l’Harmonisation en Afrique du Droit de Affaires (“OHADA”), the South African
Development Community (“SADAC”), the InterAmerican Juridical Committee, the Organization
of American States (“OAS”), the Association of Southeast Asia Nations (“ASEAN”), and the
United Nations Economic and Social Commission for Asia and the Pacific (“UNESCAP”).
Focuses of any attempts to modernize and simplify the authentication and verification of
signatures would be to incorporate concepts such as mutual recognition of the work of anyone
authorized under domestic law to attest and verify signatures, and to develop new concepts to
update the authentication and verification process.
EXISTING AMERICAN BAR ASSOCIATION POLICY CONCERNING THE
UNIFORM LAW COMMISSION’S REVISED UNIFORM LAW ON NOTARIAL ACTS
AND CONCERNING SECURED LENDING
The American Bar Association’s House of Delegates (“HOD”) recognized the value of reexamination of the legal frameworks supporting verification and attestation in 2011 when it
endorsed the Uniform Law Commission’s Revised Uniform Law on Notarial Acts promulgated
for consideration by state legislatures in 2010. Similarly, in 2011, the ABA HOD adopted a
policy for the promotion of efforts to improve the legal frameworks globally for the conduct of
secured lending, a subject matter with respect to which the formalities in many jurisdictions
dealing with the identity of a signer can obstruct the efficient conduct of secured lending. This
Resolution provides the opportunity to support the update of the legal frameworks for the
verification and attestation of signatures across borders, and supports the existing ABA policies
in this respect.
CONCLUSION
The traditional concepts of notarial verification and attestation of signatures under domestic and
international law merit modernization and simplification to recognize the emerging technology
and advances in transnational commercial practices. Modernization and simplification of the
procedures for cost-effective and timely verification and authentication of signatures will reduce
the outmoded impediments to economic activity.
Respectfully Submitted,
Gabrielle M. Buckley
Chair
February 2014
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GENERAL INFORMATION FORM
Submitting Entity: Section of International Law
Submitted By: Gabrielle M. Buckley, Chair, Section of International Law
1. Summary of Resolution(s).
The Resolution calls for the American Bar Association to support modernization and
simplification of the requirements and procedures related to verification of signatures in
cross-border contexts, for example, by modifying uniform and model laws to take
advantage of cloud-based and other technological progress and by increasing reciprocal
recognition among jurisdictions.
2. Approval by Submitting Entity.
The Council of the Section of International Law approved.on October 19, 2013.
3. Has this or a similar resolution been submitted to the House or Board previously? No.
4. What existing Association policies are relevant to this resolution and how would they be
affected by its adoption?
The Report notes the previous adoption by the ABA House of Delegates of Resolutions
2006 AM 303 and 2008 AM 100. These two resolutions reflected the ABA’s support of
The United Nations Convention on the Use of Electronic Communications in
International Contracts (2006) which is referenced in the Report and Resolution for the
proposed Recommendation & Report SPELL OUT.
The report further notes that the ABA House of Delegates recognized the value of reexamination of the legal frameworks supporting verification and attestation in 2011 when
it endorsed the Uniform Law Commission’s Revised Uniform Law on Notarial Acts
promulgated for consideration by state legislatures in 2010. The proposed resolution
supports further update of the Revised Uniform Law on Notarial Acts.
The report further notes that in 2011, the ABA HOD adopted a policy for the promotion
of efforts to improve the legal frameworks globally for the conduct of secured lending, a
subject matter with respect to which the formalities in many jurisdictions dealing with the
identity of a signer can obstruct the efficient conduct of secured lending. The proposed
Resolution provides the opportunity to support the update of the legal frameworks for the
verification and attestation of signatures across borders and supports the existing ABA
policies in this respect.
5. What urgency exists which requires action at this meeting of the House? The issue of
international transactions as they relate to the authentication and notarization of
signatures impacts the legal community and other stakeholders invested in the rule of law
on a daily basis. The current practices do not reflect the advances in the electronic and
digital channels through which business is routinely conducted today. Therefore,
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modernizing the authentication and notarization practices will improve the ability of
lawyers globally to serve clients more effectively.
6. Status of Legislation. (If applicable)
The law and practices of many jurisdictions pertaining to the requirements and
procedures related to verification of signatures in cross-border contexts are evolving.
For example, French Law no. 2011-331 of March 28, 2011, introduces the notion of an
act of lawyer (acte d’avocat) as a document drafted and signed by the parties and
countersigned by a lawyer. The law accords such an act enhanced probative value
compared to a private agreement between parties. Such an act enjoys probative value
concerning the identity of the parties and is opposable to persons whose rights derive
from the rights of the parties to the act, although it is not opposable to third parties
generally.
For discussion of law and practices, including current developments, pertaining to
verification of signatures in jurisdictions including the United States, England and Wales,
France, Germany, Italy, German, Mexico, Scotland, and Switzerland, see Cross-Border
Signature Verification – Civil Law Notaries & Notaries Public – Hague Apostille
Convention – Vienna Convention on Consular Relations, EUROPE UPDATE, Issue no. 4
(March 2013), available at
http://apps.americanbar.org/dch/committee.cfm?com=IC825000.
7. Brief explanation regarding plans for implementation of the policy, if adopted by the
House of Delegates.
If the policy is implemented, stakeholders interested in implementing modernization of
the processes will collaborate with appropriate entities to work toward updating the
authentication and notarization practices.
On an international level, the modernization and simplification of norms pertaining to the
attestation and verification of signatures might, if member states approve, be undertaken
through negotiations at the Hague Conference on Private International Law, with a view
toward complementing the work currently underway in respect of implementing
electronic apostilles. Other international fora that present opportunities for useful
normative development and reform include supranational and regional organizations,
such as the European Union, the Organisation pour l’Harmonisation en Afrique du Droit
de Affaires (“OHADA”), the South African Development Community (“SADAC”), the
InterAmerican Juridical Committee, the Organization of American States (“OAS”), the
Association of Southeast Asia Nations (“ASEAN”), and the United Nations Economic
and Social Commission for Asia and the Pacific (“UNESCAP”).
8. Cost to the Association. (Both direct and indirect costs)
None.
9. Disclosure of Interest. (If applicable) Not Applicable.
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10. Referrals.
This recommendation and report will be referred to all ABA entities.
11. Contact Name and Address Information. (Prior to the meeting)
Patrick Del Duca
Laurence Wiener
Zuber Lawler & Del Duca LLP
Wiener Soto Caparros
777 South Figueroa Street, 37th Floor
Av. Pte. Roque Sáenz Peña 637 - 1° piso
Los Angeles, CA 90017
Buenos Aires
USA
Argentina (C1035AAB)
Phone: +1 (213) 596-5620 • Direct Fax: +1 +5411 5272- 9960
(213) 260-8350
[email protected]
[email protected]
www.wsclegal.com
www.zuberlaw.com
Werner Kranenburg
No. 1 Poultry
London
Greater London
EC2R 8JR
United Kingdom
+44 (20) 31740365
[email protected]
Linda Strite Murnane
1801 McClellan Road
Xenia, OH 45385
+1 (937) 372-8229
[email protected]
12. Contact Name and Address Information. (Who will present the report to the House?)
Glenn P. Hendrix
Jeffrey Golden
Arnall Golden Gregory LLP
London School of Economics
Suite 2100
Houghton Street
171 17th Street, N.W.
London, WC2A 2AE
Atlanta, GA 30363
United Kingdom
Phone: 404/873-8692
Phone: 447785500811
E-Mail: [email protected]
E-mail: [email protected]
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EXECUTIVE SUMMARY
1.
Summary of the Resolution
The Resolution calls for the American Bar Association to support modernization and
simplification of the requirements and procedures related to verification of signatures in crossborder contexts, for example, by modifying uniform and model laws to take advantage of cloudbased and other technological progress and by increasing reciprocal recognition among
jurisdictions.
2.
Summary of the Issue that the Resolution Addresses
The existing requirements and procedures are based on treaties concluded in 1961 and 1963, as
well as statutory frameworks, that do not take fully into account modern developments in best
practices, particularly the use of electronic communications. For practical reasons associated
with timelines for implementation and the priorities of state actors, treaty revision is unlikely to
be the preferred path forward. Yet, the regulation of signature verification and notarial practice
touches on territorial sovereignty, and reciprocal recognition of modernized and simplified
procedures will be a key element of successful and appropriate reform. A key aspect of this
resolution is to assure cross-border recognition, while avoiding placing those involved in the
verification process in jeopardy of infringing foreign territorial sovereignty.
3.
Please Explain How the Proposed Policy Position will address the issue
The proposed policy reflects the American Bar Association’s support for simplification and
modernization of the procedures related to verification of signatures in cross-border contexts.
With the passage of the policy, the ABA can engage with relevant stakeholders to address the
areas in which technology has outmoded existing signature verification practices. The report
accompanying the resolution provides several possible solutions that ABA members and leaders
can explore with stakeholders in the United States and elsewhere based upon the House of
Delegates’ support of the need to modernize the process in line with 21st century business
practices.
For example, within the United States, in order to achieve modernization and simplification of
the procedures for cost-effective and timely verification and authentication of signatures, further
revision of the Revised Uniform Law on Notarial Acts of the Uniform Law Commission, which
is promulgated for consideration by state legislatures, appears desirable. In such further revision,
the existing requirement of personal appearance of the individual whose signature is to be
notarized would be relaxed, that is, personal appearance via electronic means would become
permissible, provided that certain conditions, including reliability of the electronic means to be
used in conjunction with accomplishment of the notarial act and reciprocity in the recognition of
the permissibility of use of such electronic means between the jurisdictions where the notarial
officer and the individual applying the notarization are respectively present.
4.
Summary of Minority Views
No minority views were recorded during the final discussion of the Recommendation and
Report.
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