Notarial Requirements When Exporting to a New Market

Entering a new export market usually needs a handful of one-off documents before the first sale: an authority for a local distributor or agent, a power of attorney for a trade mark agent, and letters for a product or supplier registration. Company-signed documents are signed before a notary and legalised through DFAT; government certificates can often go to DFAT directly.

Key takeaways

• These are set-up documents, signed once, often by a director, and sent to a foreign regulator, registry or agent rather than to customs.
• A new market typically involves up to four tasks: appointing someone local, registering the product, protecting the brand, and registering the company as a supplier.
• Each authority sets its own rules. A document that satisfies one may be the wrong form for another in the same country.
• Get the wording from the local party or their lawyer. A general letter drafted in Australia is often refused as too vague.
• The notary attests who signed and their authority, not what the document says about your product or company.

Set-up documents, not shipping documents

The paperwork that travels with each shipment, such as certificates of origin, commercial invoices and packing lists, is covered in notarising an export document. This page is about something that arrives earlier and catches more companies out: the documents needed to set up a new market before the first shipment can be sold there.

Those documents are signed once, often by a director, and they are the ones most likely to need notarisation, because they go to a foreign regulator, registry or professional agent that has no way of checking an Australian signature for itself. They also tend to be the documents a foreign lawyer asks for with a short deadline, just as a first order is being negotiated.

Appointing someone on the ground

A distribution or agency agreement is a private contract, and in many countries it needs no formality beyond signature. In some, it does: a commercial agency or distributorship may have to be registered with a government body, and that body may want the agreement notarised and legalised before it will register it. Whether registration is required, and what protection it gives the local party, varies by country. Some countries give registered agents rights that make them hard to replace later, which is a question for a lawyer there before you sign, not after.

The local party may also need a power of attorney or letter of authorisation from your company, so it can deal with customs, the regulator or the registry on your behalf. Get the wording from the local party or their lawyer, including the exact name of the authority it will be shown to, the powers it must list, and any expiry date. A letter drafted in Australia in general terms is often refused as too vague. Powers of attorney and legal declarations explains how these are prepared, and international powers of attorney covers the cross-border points.

Registering a regulated product

Food, cosmetics, therapeutic goods, medical devices, chemicals and agricultural inputs are commonly subject to registration in the importing country before they can be sold. The regulator's dossier often asks for some of the following: a letter from the manufacturer authorising a named local company to hold the registration; a certificate of free sale, confirming the product is lawfully sold in the country of manufacture; copies of manufacturing, quality or safety certificates; and product specifications, labels or formulations, sometimes declared by a company officer.

Sort these by who issues them before booking anyone.

• Government-issued certificates. Where an Australian government agency issues a free sale or export certificate for your product type, it is a public document. DFAT's page on the documents it can legalise includes government commercial documents, naming TGA documents among its examples. DFAT may be able to legalise such a certificate directly, without a notary. Ask DFAT and the issuing agency before paying for a notarial act.
• Company-issued letters and declarations. A manufacturer's authorisation, a self-declared free sale statement or a product declaration is a private document. A notary attests the signature of the officer who signed it and checks their authority to sign for the company. The notary does not verify what the letter says about the product.
• Third-party certificates. Certificates from testing laboratories or quality certification bodies can usually be certified as true copies by a notary, from the original. Whether the regulator accepts a certified copy, rather than a certificate confirmed by the body that issued it, is the regulator's decision.

Protecting the brand

Filing a trade mark in a new market commonly needs a power of attorney to the local trade mark agent. Some offices accept a simple signed power; some want it notarised and legalised; some accept a copy first and the original later. If you are claiming priority from an Australian application, the destination may also want a certified copy of that application from IP Australia, which is a different document from a notarised copy and is ordered from IP Australia itself. The local agent will know which their office requires, and in what order. IP transfer documents covers assignments and other intellectual property paperwork.

Registering as a foreign supplier

Some countries require foreign manufacturers or exporters of certain goods to be registered before importers may bring them in. The application usually needs evidence that your company exists and that the signatory may act for it. That means a current company extract, sometimes a certified copy of the certificate of registration, and a board resolution or similar evidence of the signatory's authority. Company incorporation documents and board resolutions cover those documents. If the market also needs a local company or branch, see registering a foreign subsidiary.

Where a chamber of commerce fits

For some destinations, commercial documents are expected to pass through a chamber of commerce, or a bilateral chamber, instead of or as well as a notary. The chamber, the importer and the destination's embassy are better placed than a notary to say which route that market expects. Ask before choosing one, because a document that went the wrong way may have to start again.

Language is the other early question. Many regulators and registries want documents in their own language, or in bilingual form with the local language prevailing. Where that is so, have the bilingual version prepared before anyone signs, so the document signed before the notary is the one that will be lodged. A translation made after signing is a separate document with its own chain. Document translation explains how translations are prepared.

Apostille or legalisation

Company documents, once notarised, go to DFAT. For a country in the Hague Apostille Convention, DFAT issues an apostille, confirming the notary's signature and seal; for other countries, an authentication certificate that the destination's embassy or consulate then legalises. Membership changes, so check the destination on the HCCH status table on the day. A notary cannot issue an apostille; see apostille and authentication.

Document	Usually for	Usual route
Letter of authorisation or power of attorney	A distributor, agent or importer	Signed before a notary, then DFAT
Manufacturer's authorisation letter	A product registration	Signed before a notary, then DFAT
Government free sale or export certificate	A product registration	Ask DFAT; often no notary
Laboratory or quality certificate	A product dossier	Certified copy, if a copy is accepted
Trade mark power of attorney	A local trade mark agent	As the trade mark office requires
Company extract and resolution	Supplier registration	Certified copies, then DFAT

Do the set-up work once

1. Pass a standing resolution naming who may sign export and market-entry documents, so each new document does not need fresh authority evidence.
2. Keep a table for each market: each document, who issued it, what formality it needed, whether it was apostilled or legalised, and when it expires or must be renewed.
3. Diary the renewals. Product registrations and agency registrations often need renewing, and the renewal usually asks for the same documents again, freshly signed and legalised.
4. Watch recency. Regulators often want certificates issued within a recent period. Obtain short-life documents last.
5. Expect a new set per market. Each authority usually keeps the originals it receives.

Here is an illustration, not a real case

A Victorian skincare company is entering a Southeast Asian market. Its distributor's lawyer sends three documents to sign: a letter authorising the distributor to hold the product registrations, a power of attorney for the local trade mark agent, and a declaration that the products are sold lawfully in Australia. The company's board first passes a resolution naming two directors as authorised signatories. One director signs all three before a notary, bringing her passport, a current ASIC extract and the resolution. The laboratory's safety reports go as notarised copies, because the regulator accepts copies. DFAT legalises everything in one lodgement, and the company records each document and its renewal date in a table for that market.

In short

A new market needs set-up documents before the first sale. Get the wording from the local party or their lawyer, sort each document by who issued it, and have company-signed documents signed by an authorised officer before a notary, then legalised through DFAT. Keep a table per market for renewals. For setting up a business abroad more broadly, see overseas business set-up documents.

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Been sent market-entry documents to sign by a lawyer abroad? Send us the documents and their instructions, and we will explain each step before you book.