When it comes to litigation in Latvia, there is a general perception that the process for dispute resolution through the court system may take a very long time. While this in some cases may be so, it is often forgotten that for certain types of cases there are processes by which a party may obtain relief in a relatively quick manner, provided that they have adhered to certain preconditions, which are further described below.
Execution orders for the enforcement of certain types of documents may, for example, in certain cases be obtained with relative speed. More precisely, in accordance with section 400, part one, point two of the Civil Process Law, enforcement on a no-contest basis is possible when it comes to agreements certified as to content by a notary concerning the payment of money or the return of movables, where the due date for repayment or return has been reached.
The precondition that the foregoing documents be certified as to content by a notary sometimes creates confusion.
In accordance with section 65 of the Law on Notaries, there are two basic kinds of notarization services:
1) basic certification and
2) certification as to content (akts).
When a notary certifies a document as to content, the following services are (hopefully) being performed: The notary certifies the identity of the signatory, its capacity and authority. Prior to signing, the notary will also determine the intent of the parties and will explain to the parties the content of the agreement and its legal consequences. Such service by a notary involves probing to see if the parties have a common mind over the prospective transaction or matter and understand the legal consequences of the documentation.
The Civil Process Law ambiguously refers to 'notary certified documents' when setting out matters for which limited no-contest enforcement is available, theoretically leaving the question of exactly what type of notary service is required open to interpretation. Yet it is clear from practice that what is in fact meant is certification as to content, as opposed to just basic notarization. Section 50 of the Civil Process Law refers to the specific no-contest matters concerning the payment of money or the return of chattels, where the due date has been reached. For such matters to be enforced on a no-contest basis, basic notary certification, i.e. having a notary check to see if the person signing is who he says he is, is not enough. For the no-contest enforcement provisions to kick in, the document must be notarized as to content.
What are the ramifications of the distinction? They could be considerable in qualifying transactions. For example, if in a debt recovery matter, the debt instrument was notarized as to content, then there is a good chance that execution of enforcement may be conducted on a no-contest basis. If the same document is not notarized or was notarized only as to signature, then the creditor can join the back of the line for court hearings, the completion of which may take a number of years. That may not be an attractive alternative to a no-contest dispute resolution by application only (no oral hearings). Such qualifying no-contest proceeding ordinarily produces an enforcement decision within seven days of submission of the application and is in force and effect forthwith, ordinarily without right of appeal.
Which is all food for thought on the question of whether asking a notary in certain types of matters to consider the applicable documentation as to its content is an unnecessary discretionary expense or a prudent risk management measure, albeit at a higher cost.
Whatever view is taken, parties to a transaction should not assume that it is always in their best interests to have notaries review any kind of documents as to content, as the fee for such service is considerably higher than the signature authentication fee, and it is only in a number of limited circumstances that the 'upgrade' in notary involvement is likely to result in value added remedies. But in such limited circumstances, the 'upgrade' service benefits may be quite considerable.
Martin Mezinskis is an associate at Kronbergs & Cukste, a member of Baltic Legal Solutions, a pan-Baltic integrated legal network of law firms which includes Glikman & Partnerid in Estonia and Jurevicius, Balciunas & Bartkus in Lithuania, dedicated to providing a quality 'one-stop shop' approach to clients' needs in the Baltics.