Notarial Requirements When Registering a Foreign Subsidiary

When an Australian company sets up a subsidiary overseas, the parent is a founding shareholder, and a foreign registry, notary or lawyer has to be satisfied of two things before the new company can exist: that the parent is real and has decided to do this, and that whoever signs the incorporation documents is entitled to sign for it.

Almost all the Australian notarial work falls out of those two questions. The practical skill is keeping the number of documents, signatories and appointments down, because each one adds an authentication step at the far end.

Start with the destination lawyer's list, not an Australian checklist

Company formation is governed by the law of the country where the subsidiary is being created. The local lawyer or formation agent there will know what their registry, or their notary, requires, and will usually draft the documents the parent must sign. Ask for that list, in writing, before anything is signed in Australia. The Australian notary is responsible for the Australian end of the chain and does not advise on the foreign law.

Ask the lawyer three specific questions: which documents must be notarised and apostilled or legalised; whether they must be in a particular language or in bilingual form; and how recent the evidence about the parent must be at the date of filing.

The power of attorney does most of the work

In many jurisdictions the incorporation deed is signed in front of a local official or notary. Rather than fly directors overseas, the parent grants a power of attorney to a local lawyer or representative to sign on its behalf. That power of attorney is usually the most important document in the whole exercise, and in civil law countries it is commonly the document the local notary scrutinises hardest.

Points to settle with the destination lawyer:

• Use their draft. A power of attorney in the form the local notary expects is far more likely to be accepted than an Australian-style one.
• Get the scope right first time. If the same attorney will also open the subsidiary's bank account, register it for tax and appoint its auditors, it is usually cheaper to cover those steps now than to execute a second power later. How wide a power should be is a legal question for the lawyer, not something to improvise.
• Watch the dates. If the power has an expiry date, make sure it outlasts the registration process, including any delay.

Evidence about the parent

The foreign side will want to see that the parent exists, who its officers are, and that it authorised the subsidiary. In Australia that is typically a current ASIC extract or a notarial certificate of the company's status, and a board resolution. The separate pages on company incorporation documents and board resolutions cover these in detail.

One resolution can usually do several jobs: approving the formation, authorising the subscription for shares, nominating the subsidiary's first directors or representatives, and approving the power of attorney and who signs it. Drafting it that way avoids separate notarial acts for separate decisions. Check the destination lawyer is content with a combined resolution.

Evidence about the people

The subsidiary's first directors and any local representatives usually have to provide their own material: certified passport copies, proof of address, specimen signatures, consents to act, and sometimes declarations that they are not disqualified from acting.

Anyone in Australia can deal with all of this at the same appointment as the parent's documents. People elsewhere will sign in front of a notary in their own country, which means the foreign registry receives notarial certificates from more than one jurisdiction. Most registries accept that; confirm it early rather than discover it at filing.

Subsidiary or branch

The distinction matters for paperwork. A subsidiary is a new company, so the parent's documents are evidence about a shareholder. A branch is the parent itself operating abroad, so registries typically ask for more of the parent's own records — its constitution, sometimes its financial statements — because those records now govern the local operation. If you are still deciding between the two, ask the destination lawyer what each would require from the parent before choosing.

Sequence

1. Obtain the destination lawyer's list and draft documents
2. Pass the board resolution in the agreed form
3. Obtain current ASIC evidence close to the appointment date
4. One notarial appointment with every signatory who is in Australia
5. DFAT: an apostille if the destination is a Hague Apostille Convention member — check the HCCH status table on the day — or authentication followed by embassy legalisation if it is not. A notary cannot issue an apostille
6. Translation at the point the destination specifies
7. Courier the originals and send scans ahead

Where the cost accumulates

Count documents, not appointments. Each separate document generally needs its own DFAT certificate, and for non-Hague destinations its own embassy legalisation. Three ways to keep the count down: combine decisions into one resolution; ask whether the notary can bind the resolution, power of attorney and certificate of status into a single instrument, and whether DFAT and the destination will treat it as one; and order any extra originals — for the bank or tax office in the same country — at the same appointment rather than later.

Common questions

Does the Australian notary need to know the foreign company law? No. The notary deals with identity, authority and execution at the Australian end. The foreign requirements come from the destination lawyer.

Can our directors sign the incorporation documents by video link? Whether a remotely executed act is acceptable is decided by the receiving authority. Ask the destination lawyer before booking a remote appointment.

Do we need a new ASIC extract if the formation is delayed? Possibly. If the destination measures recency from filing, a delay can make the evidence stale. Ask how recency is measured.

Our company has no constitution. Is that a problem? Many proprietary companies do not have one. Say so plainly; a notarial certificate can record it. Do not produce a template that was never adopted.