Solicitor Emma Ford, in our Corporate & Commercial team, reminds companies of the importance of validly executing documents for use overseas.
With the continuing increase in inward mergers and acquisitions by overseas companies, considerations should be given as to whether documents, executed by an overseas company, have been validly executed and will be enforceable in this country when such documents are stated to be subject to English Law.
The problem was originally addressed by the UK's Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009. These provide that execution of a document by an overseas company can be in any manner permitted by the laws of that company's place of incorporation. However when dealing with an overseas company how far it is necessary to check that the laws of incorporation actually permit the valid execution of the document in question?
In a case in 2015, the Court of Appeal held that an overseas company when executing an English law document was not bound in that particular case since the document in question had not been executed in accordance with the law of the overseas company's constitution. The Court took the view that the 2009 Regulations only relate to the English law formalities for execution by an overseas company and not the capacity or authority of the signatory. As a result since in that case one officer only of the company and not two (as required in accordance with Swiss law) had signed on behalf of the Company, the document was not legally binding.
This provides a reminder of the importance to always obtain advice - preferably a legal opinion from an overseas lawyer or Notary qualified in the overseas jurisdiction - to ensure that not only has the document been validly executed but also that the signatory to a document has both capacity and authority to sign on behalf of the overseas company.
David is Head of our Corporate team at Blandy & Blandy LLP. He is also a Notary Public and partner at Friar Street Notaries and regularly authenticates and verifies facts and documents as well as certifying the proper execution of documents intended for use outside the UK. Notaries are recognised internationally and their signatures and seals can be legalised at the Foreign and Commonwealth Office and appropriate Embassies.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
