By: Rafael Alvarado
Our law, specifically Article 43 of the Judicial Branch Law, empowers Guatemalan Notaries to act abroad.
Said norm stipulates the following:
“ARTICLE 43. Notarial performance abroad.
Guatemalan diplomatic and consular officials, when they are notaries, are empowered to record facts that they witness and circumstances that are known to them and to authorize acts and contracts abroad that are to take effect in Guatemala. Likewise, Guatemalan notaries may authorize them and all of them shall do so on simple paper, taking effect as a notarial act as of the date on which they were notarized in Guatemala. The notarization shall be made in the manner established in Article 38 of this Law”.
As indicated in the norm, Guatemalan notaries are empowered to record facts that they witness and circumstances that are known to them, and to authorize acts and contracts abroad that are to take effect in Guatemala. All this is documented on simple paper, taking effect as a notarial act from the date on which they are notarized in Guatemala in accordance with the provisions of Article 38 of the Law of the Judiciary.
If the person granting the power of attorney or mandate abroad is an individual, there is no major problem, since Article 29 of the Notary Code (Public Instruments) in its numeral 5 indicates that the public instrument shall contain a reason for having had in sight the reliable documents that prove the legal representation of the parties appearing on behalf of another, stating that such representation is sufficient according to the law and in its judgment, for the act or contract.
Now, what happens when the person who appears before the Guatemalan Notary abroad to grant the power of attorney is a legal representative of a foreign juridical person?
In practice, I have repeatedly seen examples of powers of attorney granted abroad before a Guatemalan Notary by the legal representative of a foreign legal entity, and the documents that the Notary had before him are the documents that the legal representative of such entity had before him and that are normally used in such country.
Can the Guatemalan Notary certify the representation of a foreign company with the documents that the legal representative of such entity normally certifies its legal representation in its country of origin?
If the legal representative of a foreign entity appears before me in Guatemala and pretends to accredit his legal representation with the documents that normally accredits his legal representation in his country of origin, I would not accept them.
In my opinion, the only document that can be presented in Guatemala to a Guatemalan Notary to prove the legal representation of a foreign entity is a power of attorney granted abroad (in accordance with the legal formalities of such country), apostilled, notarized before a Notary in Guatemala and registered in the Power of Attorney Registry of the General Protocols Archive of the Judiciary.
In addition, in case the power of attorney has been granted in a country that is a member of the Inter-American Convention on the Legal Regime of Powers of Attorney to be Used Abroad, the requirements established in said Convention must be observed. Only with such document could the Guatemalan Notary in such case certify that such representation is sufficient according to the law and in his judgment, for the act or contract to be executed.
And then, how can the Guatemalan Notary be accredited with the legal representation of the foreign entity in the case that the Guatemalan Notary travels abroad with the purpose of granting a power of attorney?
This is really a gray area, since the ideal document should be the power of attorney granted abroad, apostilled, notarized before a Notary Public in Guatemala and registered in the Power of Attorney Registry of the General Archive of Protocols of the Judicial Branch, but in such case it would not make sense for the Guatemalan Notary to travel abroad to have the power of attorney granted before him/her.
A possible solution that we have found, but which I understand has not been tested in the courts, is the supplementary application of Article 35 of the Judicial Branch Law, which establishes the following:
“ARTICLE 35. Of foreign law.
The Guatemalan courts shall apply ex officio, when appropriate, the laws of other States. The party that invokes the application of foreign law or that dissents from the one invoked or applied, shall justify its text, validity and meaning by means of certification of two practicing lawyers in the country whose legislation is concerned, which shall be presented duly legalized. Without prejudice to the foregoing, the national court may inquire into such facts, ex officio or at the request of a party, through diplomatic channels or by other means recognized by international law.”
In case of urgency, in which it is necessary for a foreign entity to grant a power of attorney abroad before a Guatemalan Notary, the Guatemalan Notary could be assisted by two practicing attorneys in such country, who would appear as expert witnesses, indicating (in their capacity as attorneys of the country where the power of attorney is being granted) that the legal representation exercised by the legal representative of the foreign entity, is sufficient according to the law and in their judgment, for the act or contract.
As I indicated, this is a gray area that has not been tested in the courts, but could be used in case of urgency and warning the client of the possible risks of doing so.