PROTOCOL ON UNIFORMITY OF POWERS OF ATTORNEY WHICH ARE TO BE UTILIZED ABROAD (C-6)-1940
The Seventh International Conference of American States approved the following resolution (No. XLVIII):
“The Seventh International Conference of American States Resolves:
1. That the Governing Board of the Pan American Union shall appoint a Commission of five experts, to draft a project for simplification and uniformity of powers of attorney, and the juridical personality of foreign companies, if such uniformity is possible. If such uniformity is not possible, the Commission shall suggest the most adequate procedure for reducing to a minimum both the number of different systems of legislation on these subjects and the reservations made to the several conventions.
2. The report should be issued in 1934, and be given to the Governing Board of the Pan American Union in order that it may submit it to the consideration of all the Governments, members of the Pan American Union, for the purposes indicated.”
The committee of Experts appointed by the Governing Board of the Pan American Union pursuant to the above resolution prepared a draft of uniform legislation governing powers of attorney to be utilized abroad, which was submitted by the Governing Board to the Governments, members of the Pan American Union, and revised in accordance with the observations of the said governments.
A number of the governments of the American Republics have indicated that they are prepared to subscribe to the principles of the said draft, and to give them conventional expression, in the following terms:
ARTICLE I
Powers of attorney granted in the countries, comprising the Pan American Union, for utilization abroad, shall conform to the following rules:
1. If the power of attorney is executed by or on behalf of a natural person, the attesting official (notary, registrar, clerk of court, judge or any other official upon whom the law of the respective country confers such functions) shall certify from his own knowledge to the identity of the appearing party and to his legal capacity to execute the instrument.
2. If the power of attorney is executed in the name of a third person, or if it is delegated or if there is a substitution by the agent, the attesting official, in addition to certifying, in regard to the representative who executes the power of attorney, or delegates or makes a substitution, to the requirements mentioned in the foregoing paragraph, shall also certify that such representative has in fact the authority to represent the person in whose name he appears, and that this representation is legal according to such authentic documents as for this purpose are exhibited to said attesting official and which the latter shall mention specifically, giving their dates, and their origin or source.
3. If the power of attorney is executed in the name of a juridical person, in addition to the certification referred to in the foregoing paragraphs, the attesting official shall certify, with respect to the juridical person in whose name the power is executed, to its due organization, its home office, its present legal existence, and that the purposes for which the instrument is granted are within the scope of the objects or activities of the juridical person; which declarations shall be based on the documents which for that purpose are presented to the official, such as the instrument of organization, bylaws, resolutions of the board of directors or other governing body, and such other legal documents as shall substantiate the authority conferred. The attesting official shall specifically mention these documents, giving their dates and their origin.
ARTICLE II
The certification made by the attesting official pursuant to the provisions of the foregoing article, shall not be impugned except by proof to the contrary produced by the person challenging its accuracy. For this purpose, it shall not be necessary to allege falsity of the document if the objection is founded only on an erroneous legal construction or interpretation made by the official in his certification.
ARTICLE III
It shall be unnecessary for the grantee of a power of attorney to signify therein his acceptance of the mandate; such acceptance being conclusively presumed by the grantee’s acting under the power.
ARTICLE IV
Special powers of attorney to authorize acts of ownership granted in any of the countries of the Pan American Union, for use in another member country, must specify in concrete terms the nature of the powers conferred, to enable the grantee to exercise all the rights necessary for the proper execution of the power with respect to property as well as to the taking of all necessary steps before the tribunals or administrative authorities in defense thereof.
General powers of attorney for the administration of property shall be sufficient, if expressly granted with that general character, to empower the grantee to consummate all manner of administrative acts, including the prosecution and defense of law suits and administrative and judicial proceedings, in connection with the administration of the property.
General powers of attorney for lawsuits, collections or administrative or judicial proceedings, when so worded as to indicate that they confer all general powers and all such special powers as, according to the law, ordinarily require a special clause, shall be deemed to be granted without any limitation or restriction whatever.
The provisions of this article shall have the character of a special rule which shall prevail over such general rules to the contrary as the legislation of the respective country may establish.
ARTICLE V
Powers of attorney granted in any of the member countries of the Pan American Union, which are executed in conformity with the rules of this protocol, shall be given full faith and credit, provided, however, that they are legalized in accordance with the special rules governing legalization.
ARTICLE VI
Powers of attorney granted abroad and in a foreign language may be translated into the language of the country of their destination and the translation incorporated as part of the text of the instrument thereof. In such case, the translation, so authorized by the grantor, shall be deemed accurate in every particular. The translation of the power of attorney may also be made in the country where the power is to be utilized, in accordance with the local usage or pertinent laws of such a country.
ARTICLE VII
Powers granted in a foreign country do not require as a prerequisite their registration or protocolization thereof in designated offices. However, this rule will not prevail when the registration or protocolization of such instruments is required by the law as a special formality in specific cases.
ARTICLE VIII
Any person who may, pursuant to the pertinent legislation, intervene or become a party in a judicial or administrative proceeding for the defense of his interests, may be represented by a volunteer, on condition, however, that such representative shall furnish the necessary legal authority in writing, or that, pending the due substantiation of his authority, such representative shall furnish bond, at the discretion of the competent tribunal or administrative authority, to respond for the costs or damages which his action may occasion.
ARTICLE IX
In the case of powers of attorney, executed in any of the countries of the Pan American Union in accordance with the foregoing provisions, to be utilized in any other member country of the Union, notaries duly commissions as such under the laws of their respective countries shall be deemed to have authority to exercise functions and powers equivalent to those accorded to native notaries by the laws and regulations of (name of country), without prejudice, however, to the necessity of protocolization of the instrument in the cases referred to in Article VII.
ARTICLE X
What has been said in the foregoing articles with respect to notaries, shall apply with equal force to the authorities or officials that exercise notarial functions under the laws of their respective countries.
ARTICLE XI
The original of the present protocol in Spanish, Portuguese, English and French, under the present date shall be deposited in the Pan American Union and opened for signature by the states, members of the Pan American Union.
ARTICLE XII
The present protocol is operative as respects each High Contracting Party on the date of signature by such party. It shall be open for signature on behalf of any of the states, members of the Pan American Union, and shall remain operative indefinitely, but any party may terminate its own obligations hereunder three months after it has given to the Pan American Union notice of such intention.
Notwithstanding the stipulations of the foregoing paragraph any state desiring to do so may sign the present protocol ad referendum, which protocol in this case, shall not take effect, with respect to such state, until after the deposit of the instrument of ratification, in conformity with its constitutional procedure.
ARTICLE XIII
Any state desiring to approve the present protocol with modifications may indicate, when signing the protocol, the form in which the instrument will be given effect within its territory.
IN WITNESS WHEREOF, the undersigned plenipotentiaries, having deposited their full powers found to be in due and proper form, sign this protocol on behalf of their respective governments, and affix thereto their seals on the dates appearing opposite their signatures.
Signatories and Ratifications
ADOPTED AT: WASHINGTON, D.C., UNITED STATES
DATE: 02/17/40
CONF/ASSEM/MEETING: GENERAL SECRETARIAT OF THE ORGANIZATION OF AMERICAN STATES
ENTRY INTO FORCE: FOR EACH COUNTRY ON THE DATE OF SIGNATURE, IN ACCORDANCE WITH ARTICLE XII
OF THE PROTOCOL
DEPOSITORY: OAS GENERAL SECRETARIAT (ORIGINAL INSTRUMENT AND RATIFICATIONS)
TEXT: OAS, TREATY SERIES, NO. 27
UN REGISTRATION: 03/03/53 No. 487 Vol. 161
OBSERVATIONS: In accordance with Article XII the Protocol is operative as respects each
High Contracting Party on the date of signature by such Party, except when signed ad referendum,
in which case it does not take effect, with respect to such State, until after the deposit of the instrument of ratification.
GENERAL INFORMATION OF THE TREATY: C-6
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SIGNATORY COUNTRIES SIGNATURE REF RA/AC/AD REF DEPOSIT INST INFORMA REF
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Bolivia …………. 09/26/40 D 1 / / / / / /
Brazil ………….. 09/06/40 D 2 / / / / / /
Colombia ………… 05/25/40 R 3 04/02/43 R a 06/10/43 RA / /
El Salvador ……… 05/21/40 6 12/09/40 R b 02/06/41 RA / /
Mexico ………….. 12/15/51 R 4 05/12/53 R c 06/24/53 RA / /
Nicaragua ……….. 05/27/40 6 / / / / / /
Panama ………….. 04/10/40 6 / / / / / /
Paraguay ……….. 06/02/98 6 / / / / / /
United States ……. 10/03/41 6 04/03/42 04/16/42 RA / /
Venezuela ……….. 02/20/40 R 5 10/09/41 R d 11/03/41 RA / /
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REF = REFERENCE INST = TYPE OF INSTRUMENT
D = DECLARATION RA = RATIFICATION
R = RESERVATION AC = ACCEPTANCE
INFORMA = INFORMATION REQUIRED BY THE TREATY AD = ACCESSION
*DECLARATIONS/RESERVATIONS/DENUNCIATIONS/WITHDRAWS
TREATY REFERENCES: C-6
1. Bolivia:
(Declaration made at the time of signature)
The Representative of Bolivia signs ad referendum this Protocol with the following clarification regarding Article I, Section 2:
For the correct application of Article I, Section 2 of the Protocol on Uniformity of Powers of Attorney in the territory of the Republic of Bolivia, it is necessary that the notary or official charged with the authentication of documents insert in the Powers of Attorney which are issued by delegation or by substitution the integral text of the original Powers of Attorney and of all those documents which prove the legal capacity of the person conferring the power.
2. Brazil:
(Declaration made at the time of signature)
Brazil did not sign ad referendum, and consequently the Protocol entered into force with respect to that country on the date of signature, the sixth of September, 1940.
3. Colombia:
(Reservation made at the time of signature)
The Plenipotentiary of Colombia signs the Protocol on Powers of Attorney ad referendum to approval by the National Congress, making the reservation that the Legislation of Colombia, in Article 2590 of the Civil Code, provides that notaries are responsible only for the formal part and not for the substance of the acts and contracts which they authenticate.
4. Mexico:
Signed ad referendum with the following reservation:
The Government of the United Mexican States, in accepting the provisions of Article IV, makes the express declaration that aliens who are required, for the performance of certain acts, to enter into the agreement or waiver referred to in Section I of Article 27 of the Political Constitution of the United Mexican States, must grant a special power of attorney, expressly including as one of its provisions the agreement and waiver above-mentioned. Section I of Article 27 of the Constitution reads as follows: “Only Mexicans by birth or by naturalization, and Mexican companies, have the right to acquire the ownership of lands, waters, and their appurtenances, or to obtain concessions for the exploitation of mines, waters, or mineral fuels in the Mexican Republic. The State may grant the same right to aliens, provided they enter into an agreement before the Secretariat of Foreign Relations to be considered as Mexicans with respect to such property, and not to invoke, therefore, the protection of their governments in any matter relating thereto; under the penalty, in the event they violate the agreement, of forfeiture to the nation of property they have acquired by reason
thereof. Under no circumstances may foreigners acquire direct ownership of lands and waters within a zone of one hundred kilometers along the seashore.”
5. Venezuela:
(Reservation made at the time of signature)
The Representative of Venezuela signed the Protocol with the following modification of Paragraph I of Article I:
1. If the power of attorney is executed by or on behalf of a natural person, the attesting official (notary, registrar, clerk of court, judge or any other official upon whom the law of the respective country confers such functions) shall certify from his own knowledge to the identity of the appearing party and to his legal capacity to execute the instrument, according to documents which the latter has produced.
6. El Salvador, Nicaragua, Panama and United States:
Signed ad referendum.
a. Colombia:
(Reservation made at the time of ratification)
With the reservation made at the time of signature.
b. El Salvador:
(Reservations made at the time of ratification)
(a) Article IX, as respects its application in El Salvador, shall be considered as reading as follows:
Article IX. The powers of attorney granted in any of the countries of the Pan American Union in accordance with the foregoing provisions and in conformity with the laws of the country of origin,
shall, for their utilization in any other country of the Union, be considered as granted before a competent notary of the country in which they may be used, without prejudice, however, to the necessity
of protocolization of the instrument in the cases referred to in Article VII.
(b) The reservation is made to Article VIII that official activity of the attorney, as plaintiff or defendant, cannot be admitted in judicial or administrative matters for which Salvadorian laws require that representation be accredited by a special power of attorney.
c. Mexico:
(Reservation made at the time of ratification)
With the reservation made at the time of signature.
d. Venezuela:
(Reservation made at the time of ratification)
With the reservation made at the time of signature.
(Reservation made upon approval of the Protocol)
Dominican Republic:
The Government of the Dominican Republic abstains from signing the Protocol, “because several of its provisions collide substantially with Dominican legislation or lack of provisions that exist in our laws, or they are inconvenient from the general point of view.
The Organization of American States
