Notarial Requirements When Appointing an Overseas Director

"Appointing an overseas director" describes two situations that call for very different paperwork, and the first job is working out which one you are in.

• A person in Australia is becoming a director of a company overseas — usually a subsidiary, a joint venture vehicle or a client's local entity. This generates most of the notarial work.
• An Australian company is appointing a director who lives overseas. This generates surprisingly little Australian notarial work, and it is worth knowing why before you pay for any.

When you are joining an overseas board

The foreign registry, or the company's local lawyer, will want to know who you are, that you agree to act, and sometimes that you are eligible to act. Expect some combination of:

• A consent to act, in the foreign registry's form, signed by you
• A certified copy of your passport, sometimes with prescribed wording
• Proof of residential address
• A specimen signature, for the registry's or a bank's records
• A declaration of eligibility — that you are not bankrupt, not disqualified from managing companies, or not subject to particular convictions
• Occasionally a police certificate, and sometimes an application for a local tax or identification number

A notary can witness your signature on the consent and the declaration, certify the passport copy having seen the original, and administer an oath or affirmation if the declaration must be sworn.

Two limits are worth knowing in advance.

Proof of address. A notary can certify a copy of a utility bill or bank statement. That certifies the copy, not the fact that you live there. If the registry wants your address itself attested, the usual form is a declaration you make, which the notary witnesses. Ask which the registry wants.

Declarations of eligibility. The notary administers the oath; the truth of what you declare is yours. A false declaration to a foreign registry can have consequences for you personally, and some of the questions — about disqualification elsewhere, for example — are less obvious than they look. If you are unsure how to answer one, ask the company's lawyer before the appointment, not at it.

Director duties go with the appointment

Accepting a directorship of a foreign company exposes you to that country's director duties and liabilities. That is outside what a notary deals with. If the role is more than nominal — or if it is nominal and you are being asked to accept it for convenience — get advice on the foreign law before you sign the consent.

What the chain looks like

Your documents are Australian notarial acts, so they then go to DFAT: an apostille if the destination is a Hague Apostille Convention member, checked against the HCCH status table on the day, or authentication followed by legalisation at the destination's embassy if it is not. A notary cannot issue an apostille. Where the registry wants the documents in its own language, ask whether it wants them translated before notarisation or after the apostille.

If you are one of several new directors in different countries, each of you signs before a notary where you are. Confirm the registry is content to receive certificates from more than one jurisdiction.

When an Australian company appoints someone who lives overseas

Here, the question is what Australian law and ASIC require, and much of it does not involve a notary at all.

The consent to act is kept by the company. A director must consent in writing before being appointed, but the consent is generally held in the company's records rather than lodged. An overseas director can usually sign and return it without any notarial formality, unless the company's own advisers want more.

The director needs a director identification number. This is the director's own obligation, verified through the government's identity process. People who cannot use the online process can apply another way, which may involve certified copies of identity documents. Who may certify those copies for someone outside Australia is set out in the current instructions for that process; check them rather than assuming a notary is required or sufficient.

Residency still matters. A proprietary company must have at least one director who ordinarily resides in Australia. Appointing an overseas director does not change that; if the overseas appointee would be the only director, take advice.

Where an Australian authority or counterparty does want the overseas director's signature formally witnessed, it is witnessed where the director is — by a notary or other official in their country, under that country's rules — not by an Australian notary. A document signed overseas for use here is authenticated in the country where it was signed.

Common questions

Can an Australian notary certify a copy of a foreign director's passport? Only if that person appears in Australia with the original. A notary cannot certify a copy of a document they have not seen.

The foreign company is our subsidiary. Do we need a board resolution too? Often, yes — the parent usually resolves to nominate you. See the page on registering a foreign subsidiary.

Does the registry need the originals? Usually. It keeps what it is sent. If the local bank also needs your certified passport copy, have two made at the same appointment.

Can I sign by video? Whether a remotely executed act is acceptable is for the foreign registry to decide. Ask it first.