Civil Law Notary - Netherlands

Netherlands

Evey Dutch notary (Dutch: notaris) are part of the Royal Society of Notaries (Koninklijke Notariële Beroepsorganisatie (KNB)) and occupy a special position relative to other legal practitioners such as attorneys, court bailiffs, and tax advisors. This is apparent first and foremost from the fact that notaries are public officers appointed by the justice minister and provide regulated legal services. As a qualified lawyer, a notary takes on clients, is paid on a fee-for-service basis, and is appointed for life by the Crown. Life appointment is designed to safeguard the independence needed by notaries to discharge their functions.

Notaries are independent and disinterested. Unlike attorneys or legal advisors, a notary does not represent or act in the interest of any one party. Instead, under the Dutch legal system, notaries are required to act impartially on behalf of all parties to a contract or transaction. For example, when real property is conveyed, notaries act for both the seller and buyer. They are subject to legal professional privilege and are therefore duty-bound not to betray client confidentiality, thereby giving them the right to withhold information in court as would an attorney or doctor. In cases where a notary acts as legal advisor to a particular interested party, the advising notary must counsel all parties including third party beneficiaries.

All notaries are law graduates. Not only are they experts in family, estate, company, and property laws, but they must also stay up-to-date about pertinent cases and certain aspects of tax legislation. If necessary, a Dutch notary will instruct and call on the services of other legal practitioners. However, under no circumstances may a notary represent clients in court.

Apart from advising, a notary also draws, executes, and retains instruments either by statute or at the parties' request. Under Dutch law, a notarially executed instrument is probative as of the date of record (vaste datum) and subscription of the parties. Notaries archive the minute (protocol copy, Dutch minuut) and issue exemplifications (authentiek afschrift) to the parties. The only fully executed copy, known as the engrossement (grosse), is prima facie demonstrative evidence of its tenor like a court order. There is therefore no need for the party to or custodian of a notarial instrument to provide extraneous evidence to verify the instrument's probativity. And under Dutch law, for instruments to be self-executing they must be public instruments, which is why any instrument drafted by a common-law lawyer, which is never public, is not directly enforceable in the Netherlands.

The new Notaries Act (Wet op het Notarisambt), commenced in October 1999 (156 years after the original act), reinforces the official position of notaries, but also expands on and adds to their traditional services. The consolidation of the notary's official position is, for example, reflected in the way the requirements of impartiality and independence have been enshrined in law, the many regulations a notary and notary's clerk are required to adhere to, and the fact that a notary is prohibited from acting as an attorney. Market forces have widened the possibility for notary's clerks to become notaries and for competition. However, the 1999 Act did not make substantial changes to the profession. While Dutch notaries are public officers and their instruments are public instruments, they are not government employees and instead act as independent private practitioners.

The new law makes it easier for notary's clerks to set up a practice and gives notaries more freedom in determining their fees for services. The Act has provided for the establishment of an external committee of experts; if notary's clerks submit a sound business plan to the committee, they have a greater chance to be approved to set up their own practice. Greater freedom in the fees a notary can charge implies that the Royal Society of Notaries no longer fixes fees or prescribes rates. Since July 2003 notaries have been free to establish their own fees. Maximum rate caps fixed by authorities now apply only to family law services in certain circumstances.