Notarial Requirements When Registering a Foreign Subsidiary

To register a subsidiary overseas, an Australian parent company must satisfy a foreign registry, notary or lawyer of two things. The parent is real and has decided to form the subsidiary. Whoever signs for it is entitled to sign. Almost all the Australian notarial work follows from those two questions, and the skill is keeping the documents few.

Key takeaways

• Start with the destination lawyer's list, in writing. Company formation is governed by the law of the country where the subsidiary is created.
• The power of attorney to a local representative usually does most of the work. Use the local lawyer's draft.
• One well-drafted board resolution can approve the formation, the share subscription, the first directors and the power of attorney together.
• An ASIC extract is a government document DFAT can deal with. Private documents, such as resolutions and powers, are notarised first.
• Cost and time build up per document, not per appointment. Each separate document usually needs its own DFAT certificate.

Why start with the destination lawyer's list?

Company formation is governed by the law of the country where the subsidiary is being created. The local lawyer or formation agent there knows what the registry, or the local notary, requires. They 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. The notary checks identity, authority and execution, and records the act. The notary does not advise on the foreign company law, and neither should an Australian checklist found online.

The recency question matters more than it looks. Some registries measure the age of an ASIC extract from the date of filing, not the date of signing. A delay abroad can make good evidence stale.

Why does the power of attorney matter most?

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. That person signs the deed on the parent's behalf.

That power of attorney is usually the most important document in the exercise. In civil law countries, it is commonly the document the local notary scrutinises hardest. Settle these points with the destination lawyer:

• Use their draft. A power 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. The same attorney may also open the bank account, register for tax and appoint auditors. Covering those now is usually simpler than a second power later. How wide the power should be is a legal question for the lawyer.
• Watch the dates. If the power has an expiry date, make sure it outlasts the registration, including any delay.
• Check who signs. The destination may want the power signed by two directors, or by a director and the secretary, as the company's constitution or the Corporations Act allows.

For how company powers of attorney are signed and notarised, see powers of attorney and declarations.

What evidence about the parent will the foreign side want?

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, plus a board resolution.

An ASIC extract is a government document. DFAT's page on documents it can legalise includes government commercial documents such as ASIC's. A board resolution is a private document and must be notarised before DFAT will deal with it.

One resolution can usually do several jobs. It can approve the formation and authorise the share subscription. It can nominate the subsidiary's first directors or representatives. It can approve the power of attorney and name who signs it. Drafting it that way avoids separate notarial acts for separate decisions. Check that the destination lawyer is content with a combined resolution. See notarising a board resolution.

What evidence about the people is needed?

The subsidiary's first directors and any local representatives usually provide their own material. That can include 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. The notary must sight each original passport; a scan will not do. People elsewhere sign in front of a notary in their own country. The foreign registry then receives notarial certificates from more than one jurisdiction. Most registries accept that, but confirm it early rather than at filing. For directors specifically, see appointing an overseas director.

Is it a subsidiary or a 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. Registries typically ask for more of the parent's own records for a branch. They may want its constitution and, 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. The answer can change which documents you notarise, and how many.

What is the usual 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. Hold one notarial appointment with every signatory who is in Australia.
5. Go to DFAT. Get an apostille if the destination is a Hague Apostille Convention member; check the HCCH status table on the day. If it is not, get authentication and then embassy legalisation. A notary cannot issue an apostille.
6. Arrange translation at the point the destination specifies, before or after the apostille.
7. Courier the originals and send scans ahead, so the lawyer can check them.

Where do cost and time accumulate?

Count documents, not appointments. Each separate document generally needs its own DFAT certificate. For a non-Hague destination, each also needs its own embassy legalisation. There are three ways to keep the count down:

• Combine decisions into one resolution.
• Ask whether the notary can bind the resolution, the power of attorney and the certificate of status into one instrument. Ask whether DFAT and the destination will treat it as one.
• Order any extra originals, for a bank or tax office in the same country, at the same appointment rather than later.

We do not give figures here. DFAT's charges and embassy fees change, and the count of documents drives the total far more than anything else. Check DFAT's current fees when you know the count.

Which documents usually go?

Document	What it shows	Australian route
ASIC extract	The parent exists; its officers	DFAT can deal with it as a government document
Board resolution	The parent decided and who signs	Notary, then DFAT
Power of attorney	The local representative may sign	Notary, then DFAT
Constitution	The parent's internal rules	Notarised copy, then DFAT
Director passports	Identity of the first directors	Notarised copies, then DFAT if asked

Who decides whether the documents are good enough?

The receiving authority does: the foreign registry, or the local notary who executes the incorporation deed. Australian law decides how an Australian company signs and how an Australian notary certifies. It does not decide what a foreign registry will file. That is why the destination lawyer's list outranks anything written here.

Where the registry has a published list, the lawyer will usually work from it. Where it does not, the local notary's practice fills the gap. Ask what was rejected the last time an Australian company filed there. That answer is often more useful than the formal list.

What about translation?

Many registries outside the English-speaking world want documents in their own language. Some accept a bilingual document signed in both languages, which avoids a separate translation. Others want a translation by a translator they recognise, made in the destination after the apostille.

Ask the lawyer which it is before the appointment. If the translation is made in Australia, the translator's certificate may itself need notarising before DFAT. If the directors do not read the foreign text, the notary must be satisfied they understand it. See notarising a foreign-language document.

What if the company has no constitution?

Many proprietary companies do not have one and rely on the replaceable rules instead. Say so plainly. A notarial certificate can record that the company has no constitution. Do not produce a template that was never adopted, because the notary cannot certify a document as the company's when it is not.

What does not work?

• Signing before the lawyer's list arrives. Documents often have to be redone.
• An Australian-style power where the local notary expects its own form.
• Separate resolutions for each decision, each needing its own certificate.
• A stale ASIC extract after a filing delay.
• A Justice of the Peace. A JP certification is not accepted overseas and cannot be apostilled.

Here is an illustration, not a real case

A Melbourne software company is forming a subsidiary in a civil law country in Europe. The local lawyer sends a bilingual power of attorney and a list. The board passes one resolution approving the formation, the shares, two first directors and the power. Both Australian directors attend one notarial appointment. The notary certifies the company's status, their authority and their signatures in a single bound instrument. DFAT apostilles it once, and the originals go by courier.

In short

Get the destination lawyer's list first, use their power of attorney draft, and combine decisions into one resolution. Hold one appointment for everyone in Australia, then take the bundle to DFAT. More on the Australian steps is at apostille and authentication.

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Forming a company overseas? Send us the destination lawyer's list, and we will explain each step before you book.