- Friday, January 15, 2016
THE BAHAMAS is an international financial centre and major hub for the global shipping industry, ranking globally as number one for cruise ship registration and number three in total world tonnage. Both sectors are important areas of international trade for the country. Bahamian corporate vehicles are used extensively in both sectors giving rise to thousands of Bahamian International Business Companies (“IBCs”) existing on the Companies Register. In the course of related global corporate transactions, the execution and legalization of corporate documents is a regular occurrence.
This article examines the basic requirements of the execution of documents by a Bahamian company. It also discusses the additional steps of notarizing, legalizing and apostilling such documents.
Execution of Documents
How a Bahamian company executes documents?
A Bahamian company (whether an IBC under the International Business Companies Act, 2000 or a company incorporated under the Companies Act, 1992) may execute a document in any way that it determines including authorizing a person to sign the document on the company’s behalf. However, the form of execution needs to be supported either by statute, the memorandum and articles of association (“M&A”) of the company or by corporate resolution in the form specified by the M&A’s.
The preferred method of execution is for a resolution of the directors to be passed authorizing the document to be signed by certain individuals specified in the resolution, for example 2 directors, an attorney or an agent.
In some instances, certain documents will need to be executed as deeds and depending on the resolution adopted by the company, statute or the M&A’s those documents will have to be executed under the common seal of the company and witnessed by an authorized person. It would be very common in the case of the execution of a deed for the seal to be affixed by one director or two of the directors of the company in the presence of the company secretary, who signs as a witness.
Why and when is notarization needed?
Depending on the intended recipient of the document, it may also need to be notarized. In The Bahamas, a notarial certification is obtained from a notary public who, by signing and impressing the document with his notarial seal, is formally attesting only as to the execution of the document.
Unlike many civil law jurisdictions, a notary public in The Bahamas is not verifying the truth of the facts contained in the document.
Who can act as a Notary Public?
Only an enrolled counsel and attorney of the Supreme Court of The Bahamas can be a registered notary public in The Bahamas ¹. There are also certain other persons who by holding or acting in public office are entitled to exercise the functions of a notary public, these persons include but are not limited to the Attorney-General, Magistrates, the Registrars of the Supreme Court and Court of Appeal and the Registrar General.
What are the functions of a Notary Public?
Some of the everyday functions of a notary are:
What does notarization involve?
Notarization involves a notary public signing and sealing the document with his or her official seal.
When do I need to legalize a document?
In some cases, notarization of a document is not sufficient for its use in another jurisdiction and the additional step of legalization is needed. Legalization is the process of authenticating or certifying a legal document, through a chain of authentications, each by a higher governmental authority, so that a foreign country’s legal system will recognize it as valid and as having full legal effect.
What does legalization involve?
The chain of authentications begins with a notary in The Bahamas certifying the document. It then progresses to the Ministry of Foreign Affairs in The Bahamas authenticating the notary’s signature and then to the relevant Consular Authority of the destination country further authenticating the authentication of the Ministry of Foreign Affairs in The Bahamas.
Legalization can be a long and expensive process and should only be used in instances where an apostille is not available (see below).
When would I need to apostille a document?
An apostille is required in the same instances where legalization is required. However, an apostille is a default and more simplified procedure to legalization. An apostille is available if both the origin country of the document, in this case The Bahamas, and the destination country are both a party to The Hague Convention Abolishing the Requirement for Legalisation for Foreign Public Documents (the “Treaty”). The Bahamas is a party to this Treaty.
What is the process of apostilling?
This involves verification of the notary public’s signature and seal by the Ministry of Foreign Affairs in The Bahamas. Once verification by the Ministry of Foreign Affairs takes place no further action is needed. Evidence of verification is supported by the issuance of a certificate which is affixed to the document.