Notarial Requirements When Exporting to a New Market

The paperwork that travels with each shipment — certificates of origin, commercial invoices, packing lists — is covered on the separate export document and certificate of origin pages. This page is about something that arrives earlier and catches more companies out: the one-off 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 court-like body rather than to a customs officer.

Four things a new market usually needs set up

Depending on the product and the country, entering a market can involve any of:

1. Appointing someone local — a distributor, agent or importer of record
2. Registering the product with the destination's regulator, where the goods are regulated
3. Protecting the brand — filing trade marks in the destination
4. Registering the company as a recognised foreign supplier or manufacturer

Each generates its own documents and its own formality rules. Work through them separately, because a notarised document that satisfies one authority may be the wrong form for another in the same country.

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 and is a question for a lawyer there.

The local party may also need a power of attorney or letter of authorisation from your company, to deal with customs, the regulator or the registry on your behalf. Get the wording from the local party or their lawyer. A letter drafted in Australia in general terms is often refused as too vague.

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
• 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 certificate or an export certificate for your product type, it is a public document. DFAT may be able to apostille or authenticate it 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, a product declaration: these are private documents. A notary attests the signature of the officer who signed them 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 authenticated by the issuing body is its 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. 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. The local agent will know which their office requires.

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 — the corporate evidence covered on the pages on company incorporation documents and board resolutions.

Where a chamber of commerce fits

For some destinations, commercial documents are expected to pass through a chamber of commerce, or a bilateral chamber, rather than or as well as a notary. The chamber, the importer and the destination's embassy are better placed than a notary to tell you which route that market expects. Ask before choosing a route.

Do the set-up work once

• Pass a standing resolution naming who may sign export and market-entry documents, so each new document does not need fresh authority evidence.
• Keep a table per market: each document, who issued it, what formality it needs, whether it was apostilled or legalised, and when it expires or must be renewed. Product registrations and agency registrations often need renewing, and the renewal usually asks for the same documents again.
• Watch recency. Regulators often want certificates issued within a recent window. Obtain short-life documents last.

Company documents, once notarised, go to DFAT: an apostille for a Hague Apostille Convention member, checked against the HCCH status table on the day, or authentication followed by embassy legalisation otherwise. A notary cannot issue an apostille.

Common questions

Can the notary certify that our product meets the destination's standards? No. The notary attests who signed the statement and their authority. Evidence about the product comes from testing or certification bodies, or a government agency.

Do we need a new set of documents for every market? Usually. Each authority keeps the originals it receives.

Will a Justice of the Peace do? No. A JP's certification is not accepted overseas and cannot be apostilled.