Notarization in extraordinary times

The COVID-19 pandemic might have restricted mobility worldwide, but it has also set the stage for a new way of living that goes beyond physical bounds.

As we usher in this new world order, we continue to rely on technology and logistics for communications and day-to-day transactions. Invariably, in the course of our everyday affairs, the need to execute legal and public documents arises. However, owing to the quarantine, it is difficult to notarize documents.

To promote ease of doing business, the Securities and Exchange Commission (SEC) via Memorandum Circular 16-2020 (MC 16-2020) removed the requirement for applicant corporations to notarize Articles of Incorporation (AoI). Instead, the SEC merely requires the submission of a Certificate of Authentication using a prescribed format signed by the incorporators.

Likewise, the SEC Application Form for corporations covered by the Foreign Investments Act, commonly known as the FIA Form, need not be notarized. This policy is a significant development, relieving registrants of the ordeal of seeking a notary public while on quarantine.

Notwithstanding MC 16-2020, registrants, if they so choose, are not precluded from having their AoI or the FIA Form notarized. Notarization of the AoI or the FIA Form and all other legal documents should comply with the rules of the Supreme Court (SC). In addition to this, on July 14, the SC released Administrative Matter (AM) 20-07-04-SC providing for interim rules on remote notarization of paper documents.

This rule applies to notarization of paper documents signed with handwriting or marks, except notarial wills, within locations placed under community quarantine. A duly commissioned Notary Public can administer remote notarization, provided that the Notary Public, or any of the principal resides, holds office, or is situated in a locality placed under community quarantine due to COVID-19.

Notarization is most commonly secured before a Notary Public who certifies the acknowledgment or the affirmation/oath/jurat. The process generally involves three steps: 1) personal appearance of the principal before the Notary Public; 2) submission of competent proof of identity if the principal is not personally known to the Notary Public; and 3) representation on the voluntary signing of the subject document (in case of acknowledgment) and attestation of the truth of the contents of the documents (for affirmation/oath/jurat).

However, with the current pandemic, the principal’s appearance is no longer required under AM 20-07-04-SC. Instead, the documents may be delivered to the Notary Public in a sealed package, either through personal or courier services. The sealed package should also include a compact disk (CD) or universal serial bus (USB), containing the video of the act of signing by the principal (otherwise, the video can also be sent via email or other digital means of communication). If the principal is unknown to the Notary Public, competent proofs of identification, i.e. two copies of government-issued IDs of the principal and witnesses, if any, must likewise be sent.

Once the Notary Public receives these requirements, a videoconference, instead of personal appearance, will be held between the Notary Public, principal, and witnesses, if any. The videoconference can be conducted using any available web conferencing platforms.

During the videoconference, the Notary Public will open the sealed package for the principal to confirm if the received documents are the same as those sent for notarization. Once the documents are identified, the Notary Public shall review the video of the principal signing, and compare the signature appearing on the document to the handwritten signature in a blank piece of paper being shown by the principal in full view. After the principal has positively declared signing the document in his free will and the Notary Public has assessed the voluntariness of the act, the document shall be notarized in due course. Then, a Notarial Certificate shall be issued, attesting that the document was notarized through videoconference. If there is more than one principal, the videoconference may be held individually or as a group, with everyone complying the rules and procedures.

The rules also require the principal and witnesses to show his/her geolocation through a digital application with Global Positioning System capabilities or using identifiable landmarks or buildings within the vicinity. It is consistent with the AM 20-07-04-SC provision that the Notary Public, principal, and witnesses, if any, at the time of the conduct of the videoconferencing must all be located within the territorial jurisdiction of the Court that issued the Notary Public’s Commission. While the physical appearance of the principal is dispensed with, his presence within the limits of the notarial commission is still necessary. Thus, a Notary Public is still prohibited from notarizing documents for principals who are currently located outside their notarial jurisdiction.

As to costs, the Notary Public is authorized to charge the maximum prescribed fees by the SC. However, the notarial fees may be waived in full or in part.

When feasible, the personal appearance of the principal before the Notary Public is allowed, subject to observance of safety measures to avoid the spread of the virus.

AM 20-07-04-SC joins the long list of breakthrough initiatives that came into fruition in response to exceptional circumstances. With its efficient mechanism for safeguarding public health while ensuring the integrity of documents, remote notarization may soon be the new mode of authenticating paper documents — an innovative adaptation in an extraordinary time.

The views or opinions expressed in this article are solely those of the author and do not necessarily represent those of Isla Lipana & Co. The content is for general information purposes only, and should not be used as a substitute for specific advice.

Aimee Rose Dg. Dela Cruz is a senior manager with the Tax Services Group of Isla Lipana & Co., the Philippine member firm of the PwC network.

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