Many law firms in Thailand offer so-called “notarial service lawyers”. But what does that term mean? Are those lawyers really notaries? In brief, “no”, not at least as the term “notary” is generally understood outside of Thailand. But first some background on notary publics.
Common and Civil Law Systems – Different
In common law jurisdictions, notary publics provide services to the public depending on the jurisdiction in which they are licensed to operate, but those services generally include the administration of oaths, the taking of affidavits and statutory declarations, and the witnessing and authentication of documents. These acts are generally fall under the heading of notarization.
Notaries in civil law jurisdictions provide a much wider range of services than common law notaries, and although they hold public office, they usually operate in private practice. Civil-law notaries, or Latin notaries, are lawyers for non-contentious civil law matters who draft, take, and record legal instruments for private parties, provide some legal advice, and are vested as public officers with the authentication power of the State.
“Thai Notaries” – Very Different
A Thai “notarial service lawyer” has none of these powers. Instead, a Thai Lawyer’s Council regulation provides that Thai “notarial service lawyers” can issue certificates and affix seals to documents, but these seals and certificates have no legal effect.
As a matter of international practice, a notary public is supposed have the authority to administer oaths so that the affiant (the person signing the document) is doing so under penalty of perjury. Perjury is a serious crime punishable by imprisonment. Requiring someone to sign a document under penalty of perjury is intended to incentivize that person to make truthful statements. If the statements are not truthful, the person signing the document is subject to criminal punishment. But Thai notarial service lawyers are not authorized to administer oaths. Nor are they bonded.
This makes Thai “notarial services lawyers” very different than either common and civil law notaries. Indeed, one can legitimately ask if they are really “notaries” as that term is generally used and understood.
Within Thailand
What about Thailand? Do these certifications have legal effect in Thailand? Thailand has not yet enacted legislation providing for notaries public, but the Lawyers Council of Thailand issued a regulation(s) for the registration of attorneys qualified to attest to the authenticity of signatures on documents and certify documents. This regulation also sets out requirements for the training, licensing, and certification of such lawyers.
But the Thai authorities neither require nor accept documents that have been notarized in Thailand. Although some Thai authorities require that a Thai lawyer certify the authenticity of the signatures appearing on certain documents, this is not considered a notarization of that document. A licensed lawyer or Certified Public Accountant (“CPA”) must sign some of the documents submitted to register a Thai limited company, but this does not constitute a notarization of any of the documents they sign. Any Thai qualified lawyer or CPA, irrespective of whether that person has passed a test to qualify as a ‘notary” of some sort, may certify such documents.
Outside of Thailand
Some documents that are signed outside of Thailand must be notarized in that foreign jurisdiction before the Thai authorities will accept that document as properly authenticated. But these same authorities will not accept a document notarized within Thailand by any Thai notarial service lawyer as properly authenticated.
Paradoxically, even though Thai authorities will neither require nor accept documents that have been notarized in Thailand, such documents are often submitted to foreign authorities as though they have been notarized under Thai law. Whether they should be treated as properly notarized documents is a matter of foreign law, but it seems unlikely that most foreign officials understand that, strictly speaking, there is no Thai law providing for Thai notaries. Not surprisingly, this creates tremendous confusion for business people from jurisdictions that have notary publics.