There are many steps to follow when closing international corporate transactions. One step that may seem straightforward is retrieving documents, such as good standing certificates (or the country equivalent) and formation/charter documents.
However, when dealing with different jurisdictions with their own legal systems and languages, it can be challenging for attorneys to perform this due diligence work for their clients outside the U.S. in a timely and efficient way.
In this article, we’ll review some of the intricacies of fulfilling international document retrievals as part of the due diligence process.
The international equivalents of documents and/or filings may have different names and are governed by different laws than those in the U.S.
For example, the concept of “good standing” does not exist in other jurisdictions. The equivalent of a good standing certificate might be a certified extract, certificate of existence, or HRB certificate, as it's called in Germany, but none of these may officially convey the meaning of good standing as it's known in the U.S. The benefit of having an experienced partner that can assist with document searches is that you can obtain the help you need to determine what documents may be available to meet your requirement.
Another document with different nomenclature is articles of incorporation which can be called charter documents, memorandum of association, and more. What is commonly known as a bring-down letter is referred to in other countries as a comfort letter, verbal status report, or profile report.
Outside the U.S., and those countries not part of the Apostille Convention, an apostille certificate would not be available, and instead, an authentication certificate or the legalization of documents must be obtained.
It’s also important to note that when searching for a U.S. equivalent document in another country, the information required may not match one-to-one and additional documents may be required, adding time and complexity to the retrieval process.
For example, copies of a company’s formation or incorporation document may not always reflect amendments, changes, and appointments. Instead, those documents must be ordered separately. In Germany, things are a little different and this information is included in the HRB certificate (equivalent to a certificate of good standing). Even within the same country, documents can differ from city to city or state to state.
Health checks and credit reports can also be inconsistent across countries, with the information differing based on what’s available in each jurisdiction. Similarly, litigation and judgment search reports can vary. In the Cayman Islands, a popular jurisdiction for incorporation, reports will include both pending litigations and judgments, whereas, in the UK, these reports must be ordered separately.
Legal translations can add to the complexity of a project in two ways. First, documents are often issued in the local language. Unless your clients know the language of the country of origin, they will not be able to confirm the contents of the document and will require a translated version. Second, foreign agencies and jurisdictions often have unique requirements for how a translation is to be done and by whom. It is important to consider working with a partner who can provide translation services when required.
Furthermore, some countries require that the company name appear in the local language, no matter the company’s country of origin. In China, for example, the company name must be stated in Chinese characters.
Some countries are more accommodating. In the Netherlands, certificates of good standing are automatically issued in English. In Japan and Taiwan, copies of good standing documents are also provided in English alongside the official local language document.
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Some countries have dramatically different approaches to doing business than the U.S. This can be most apparent in their timelines. Depending on the document, some countries may respond quickly, while others can take weeks or months.
In India, your clients can count on at least 10 to 20 business days for certain documents compared to a one to two-day turnaround in other jurisdictions. In Canada, timelines can vary depending on the province where the search is being conducted. In some territories, it could be the same day or one to two days at a maximum, while in others, such as the northwest territories, it can take between one and two weeks.
Working on international deals can bring a host of unexpected challenges that can impact your client's timelines. Understanding the complexities and nuances of document retrieval abroad is critical. Working with a trusted partner and leveraging their know-how and local expertise can help simplify complex multi-jurisdictional searches through a single point of contact and is key to your and your client’s success.
To learn more about how CT Corporation’s Global Transactional Services can help you manage your client’s international needs, contact a CT Corporation representative at 844-878-1800 (toll-free U.S.).
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