The e-notary : a study of the progress of electronic notarisation and registration in Europe

Abstract

The advancement of technology has impacted several aspects of human life, including contracting. The ways of concluding formal contracts, received by notaries, are also beginning to be impacted by the progress in technology. Hence, the notarial profession is progressively embracing the technological change, which would provide the possibility of cross-border transactions concluded at a distance even in situations where the law requires certain formalities, such as the signature of the parties to the contract in the presence of a notary. A cross-border transaction, which permits both the purchaser and vendor to the sign a notarial instrument, transferring rights over immovable property in their respective states of residence, would be more expedient for the parties. This study provides an overview of the status quo of the national laws of the chosen MS to determine whether and to what extent they allow or provide for e-notarisation and e-registration. Subsequently, it considers the amendments to national law which would be required to be carried out by the Maltese legislator in order to permit the Maltese notary to carry out his functions electronically. The study then sheds light on the manner in which technology and relevant EU legislation function in combination to overcome the challenges posed by the possibility of electronically signing a notarial instrument. The study proceeds to analyse the principal European projects, which not only facilitate but also encourage e-notarisation and e-registration. Consequently, this thesis concludes that technology provides notaries with the tools required to electronically sign and register an electronic notarial instrument, which transfers rights over immovable property from one person to another across borders, while in some EU Member States, in order for this to be fully achieved, the laws on formal requirements need to be amended to allow for such electronic contracting and registration.