A DODGY QUESTION OF THE LEGAL FORM: FORMALITY REQUIREMENTS FOR THE POA GRANTED ABROAD TO ACT ON THE TERRITORY OF POLAND

European Scientific Journal, Mar 2014

Ever increasing interest of foreign investors in establishing their businesses in Poland results in a build-up of problems concerning the legal form of taken actions. When it comes to acting and representing foreign entities before Polish authorities, including notaries, courts and public administrative bodies, the form of a power of attorney appears to be of a particular importance. The article deals with the issue of the due form of the power of attorney granted abroad to undertake actions on the territory of Poland. The author tries to address the most relevant problems relating to this issue, i.e. the issue of equivalence of forms, formal validity, application of an appropriate law and the legal power of legalisation and apostillisation of documents.

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A DODGY QUESTION OF THE LEGAL FORM: FORMALITY REQUIREMENTS FOR THE POA GRANTED ABROAD TO ACT ON THE TERRITORY OF POLAND

European Scientific Journal February 2014 /SPECIAL/ edition vol.1 ISSN: 1857 - 7881 (Print) e A DODGY QUESTION OF THE LEGAL FORM: FORMALITY REQUIREMENTS FOR THE POA GRANTED ABROAD TO ACT ON THE TERRITORY OF POLAND 0 Jaroslaw M. Szewczyk M.A. in Law, M.Sc. in International Economics The Jagiellonian University , Cracow , Poland The European Master in Law & Economics, Bologna/Ghent/Haifa Ever increasing interest of foreign investors in establishing their businesses in Poland results in a build-up of problems concerning the legal form of taken actions. When it comes to acting and representing foreign entities before Polish authorities, including notaries, courts and public administrative bodies, the form of a power of attorney appears to be of a particular importance. The article deals with the issue of the due form of the power of attorney granted abroad to undertake actions on the territory of Poland. The author tries to address the most relevant problems relating to this issue, i.e. the issue of equivalence of forms, formal validity, application of an appropriate law and the legal power of legalisation and apostillisation of documents. Power of attorney; equal dignity rule; governing law; form of legal acts; apostillisation; legalisation of documents - Introduction Depending on a given factual configuration, providing the formal validity (fr. validit? formelle) of the authorisation with foreign element93 (authorisation to represent or act on another?s behalf) usually requires not only the knowledge of the collision rules94, but also the provisions in force in the country where it is to be granted. However, even the most profound knowledge of the provisions of international private law rarely suffices to come up with unambiguous solutions. In practice, the existence of many iffy situations results in electing and applying the safest solutions available (in specified circumstances), i.e., obtaining the ?highest? available legal form95 and procuring the appropriate apostille (always).96 Aside from the economics of such choices, even then, they do not guarantee that the obtained form is correct. On the other hand, despite obtaining the correct form, there arise problems of the practical nature, concerning the admission of the attorney-in-fact (in Polish: ?pe?nomocnik?) to the particular legal action, whether by the notary97 or the relevant public authority. 93 Hereinafter: the power of attorney ?PoA?. The existence of the foreign element requires the application of the international private law (conflict of law rules). 94 The rules provided for situations of the conflict of laws. 95 The interested parties are trying to ensure that the level of formality is as high as possible. 96 Irrespective of the fact whether it is needed or not. 97 Czubik, P., Odpowiedzialnosc notariusza za dokonanie czynno?ci na podstawie dokumentow zagranicznych, Nieruchomosci, No 12 (148)/2010, CH Beck, Warsaw, pp. 10-13; Czubik, P., Pe?nomocnictwa do przeniesienia w?asnosci nieruchomo?? sporz?dzane za granic? na obszarach obj?tych "ekstraterytorialno?ci? jurysdykcyjn?", Rejent, No 5 (229)/2010, pp. 16-30. The legal form for granting the PoA The Polish act on the private international law98 regulates the issue of the form of the legal action in Article 25. It constitutes the equivalent of Article 12 of the previously binding law on the private international law of 196599. Under Article 25 of the PIL, the form of the legal act shall be governed by the law applicable to the act itself.100 In case of the PoA, the applicable law is determined by application of Article 23 of the PIL (or possibly collision rules of some other countries as well). However, it should be remembered that securing the form prescribed by the law of the country, in which the activity is performed, is generally sufficient.101 For the formal validity of the PoA it is therefore necessary to procure the form required by the applicable law for the PoA (?lex causae?) or the law of the place where the PoA is granted (?lex loci actus?). It is worth adding that actions indicated in Article 25 section 2 of the PIL concern only the actions expressis verbis indicated therein, i.e., limitations resulting from Article 25 section 2 of the PIL. do not concern the granting of the PoA. Basically, there are no provisions forcing the use of Polish requirements as to the form of the granted PoA102. It is always possible to grant the PoA without observing the Polish requirements as to the legal form. The form of the PoA ex lege causae Pursuant to Article 23 in conjunction with Article 4 section 1 of the PIL, the PoA has its own legal status.103 Article 23 of the PIL explicitly foresees the possibility of selecting the applicable law (?lex causae?) for the PoA. However, vis-?-vis the third party, with whom the attorney-in-fact made the legal action, he can rely on the law chosen only when this third party knew about the choice of law or could have easily found out about it.104 Us (...truncated)


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Jaroslaw M. Szewczyk. A DODGY QUESTION OF THE LEGAL FORM: FORMALITY REQUIREMENTS FOR THE POA GRANTED ABROAD TO ACT ON THE TERRITORY OF POLAND, European Scientific Journal, 2014,