Written by: Rafael Alvarado
Our law, specifically article 43 of the Judicial Branch Law, empowers Guatemalan Notary Publics to be able to act abroad.
Said rule stipulates the following:
“ARTICLE 43. Notarial performance abroad.
Guatemalan diplomatic and consular officials, when they are notary publics, are empowered to record facts that they witness and circumstances that are known to them and authorize acts and contracts abroad that are to take effect in Guatemala. Likewise, Guatemalan notary publics may authorize them and all of them will do so on simple paper, having their legal effects as a notarial act from the date they are protocolized in Guatemala. The protocolization will be done in the manner established in article 38 of this Law.”
As the norm indicates, Guatemalan notary publics are empowered to record facts that they witness and circumstances that are known to them, and authorize acts and contracts abroad that are to take effect in Guatemala. All of this is documented on simple paper, having its legal effects as a notarial act from the date they are protocolized in Guatemala in accordance with the provisions of article 38 of the Judicial Branch Law.
If the person who grants the power of attorney abroad is an individual, there is no major problem, since article 29 of the Notarial Code (Public Instruments) in its numeral 5 indicates that the Notary Public will state that he did have in view the reliable documents that prove the legal representation of those appearing on behalf of another, stating that said representation is sufficient according to the law and in his opinion, for the act or contract.
Now, what happens when the person who appears before the Guatemalan Notary Public abroad to grant the power of attorney is a legal representative of a foreign legal entity?
In practice, I have repeatedly seen examples of powers of attorney granted abroad before a Guatemalan Notary Public by the legal representative of a foreign legal entity, and the documents that the Notary Public had in view are the documents that the legal representative of said entity presented and that are normally used in such country.
Can the Guatemalan Notary Public accredit the representation of a foreign company with the documents that the legal representative of said entity normally accredits his legal representation in his country of origin?
If the legal representative of a foreign entity appears before me in Guatemala and tries to accredit his legal representation with the documents that normally accredit 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 Public to prove the legal representation of a foreign entity is a power of attorney granted abroad (according to the legal formalities of that country), apostilled, protocolized before a Notary Public in Guatemala and registered in the Registry of Powers of the Supreme Court of Justice.
In addition, if 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 said document could the Guatemalan Notary in said case state that said representation is sufficient according to the law and in his opinion, for the act or contract that is intended to be executed.
And then how can the legal representation of the foreign entity be accredited to the Guatemalan Notary Public in the event that the Guatemalan Notary travels abroad in order to precisely grant a power of attorney?
This is really a gray area, since the ideal document should be the power of attorney granted abroad, apostilled, protocolized before a Notary Public in Guatemala and registered in the Registry of Powers of the Supreme Court of Justice, but in that case, it would not do sense that the Guatemalan Notary Public travels abroad so that the power of attorney is granted before him.
A possible solution that we have found, but which I understand has not been tested in court, is to additionally apply article 35 of the Judicial Branch Law, which establishes the following:
“ARTICLE 35. Of foreign law.
The Guatemalan courts will apply ex officio, when appropriate, the laws of other States. The party that invokes the application of foreign law or that disagrees with the one that is invoked or applied, will justify its text, validity and meaning through a certification of two practicing lawyers in the country whose legislation is in question, which must be presented duly authenticated. Notwithstanding the foregoing, the national court may investigate 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 Public, the Guatemalan Notary Public could be assisted by two practicing lawyers in that country, who would appear as expert witnesses, indicating them (in their capacity as of lawyers of the country in which 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 opinion, for the act or contract.
As I indicate, this is a gray area that has not been tested in court but could be used in an emergency and warning the client of the possible risks of doing so.