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Interim Rules on Remote Notarization and the Future of Remote Online Notarization in the Philippines

—Ely R. Vasig, Partner
—Justine Abigail C. Sablan, Associate

Vasig | Abarquez | Lumauig | Abarquez | Puno Law Offices (“VAL Law”), through Legal Hackers Manila and in support of the initiative of UP Women Lawyers Circle, is proud to have had the opportunity to promote and participate in the initiative towards the issuance of A.M. No. 20-07-04-SC[1], otherwise known as the 2020 Interim Rules on Remote Notarization of Paper Documents (“RON Rules”).

Under the RON Rules, the online notarization of paper documents and instruments with handwritten signatures or marks through the use of videoconferencing facilities is now expressly allowed until such further time that the Supreme Court directs otherwise.[2] The promulgation of the RON Rules was in response to the imposition of community quarantine throughout the Philippines due to the COVID-19 Pandemic.[3]

Currently, the RON Rules apply only in cases where the notary public or at least one of the principals resides, holds office, or is otherwise situated in a locality which is placed under community quarantine as directed by the Inter-Agency Task Force for the Management of Emerging Infectious Diseases (“IATF”).[4]

Who are qualified to notarize documents?

Only a notary public with a valid and existing notarial commission issued under the 2004 Rules on Notarial Practice (“2004 Notarial Rules”) can perform the notarial acts authorized under the RON Rules.[5] Any notarial act performed under the RON Rules shall have the same validity, force, effect, and may be relied upon to the same extent as any other notarial act performed under the 2004 Notarial Rules.[6]

Where should the instrument or document be notarized?

  • All notarial acts under the RON Rules shall be performed by the notary public, still, within the territorial jurisdiction of the court which issued the notary public’s commission.[7]
  • In case of acknowledgment, affirmation, oath, jurat, in cases where the signatures of witnesses appear in the instrument or document, and in cases where a thumbmark or other mark is affixed in lieu of a signature, or when the notary public signs on behalf of the principal – the notary public, as well as the principals and witnesses, if any, must be located within the territorial jurisdiction of the notary public’s commission during the videoconference under the RON Rules.[8]
  • In case of copy certification, the presence of the notary within the territorial jurisdiction of the court which issues his/her notarial commission shall suffice.[9]

What is the mode of notarization?

According to the RON Rules, notarization should be limited through the use of videoconferencing facilities.[10] Videoconferencing facilities shall refer to “any tool, device, system, application and technology that has sufficient interactive audio-video capabilities that allow all the parties physically located in different locations to see, hear and communicate with, and present and confirm competent evidence of identity to each other in real time. These facilities include Webex, Zoom, Google Meet, Microsoft Teams, and other similar web conferencing platforms.”[11]

Acknowledgment, Affirmation, Oath, and Jurat via Videoconference

An instrument or document may be acknowledged before the notary public through the use of videoconferencing facilities. Additionally, an instrument or document requiring affirmation or oath may also be done through the use of videoconferencing facilities. The notable features of the procedures shall be as follows:

  • The principal[12] shall cause the delivery of the instrument or document requiring acknowledgment to the notary public by personal or courier service.[13] It is important that the instrument or document is integrally complete, bear the handwritten signature of the principal, and be placed in an envelope sealed with the initials of the principal.[14] In cases where the principal chooses to cause the delivery through courier service, he or she shall be required to furnish the notary public with the details necessary to track its delivery once these details become available.[15]
    • Courier service shall refer to on-demand express delivery services,[16] as well as door-to-door express delivery services[17] including those services offered by private express and/or messengerial delivery service (PEMEDES) or courier service providers authorized by the Department of Information and Communications Technology (“DICT”), provided, they are equipped with shipment tracking facilities which enable users to track the movement of shipments in real time.[18]
  • The principal shall be required to present two (2) copies of competent evidence of identity, as provided in the RON Rules, either through personal or courier service.[19] He/She may also be signing in a particular representative capacity wherein, in addition to the competent evidence of identity, two (2) certified copies of the documents granting his/her authority to sign shall also be delivered to the notary public.[20]
    • In addition, the original evidence of the abovementioned documents shall be required to be exhibited to the notary public during the videoconference for purposes of examination and comparison with the copies so provided.[21]
  • The principal shall also submit to the notary public a video clip showing that he/she actually signed the instrument or document delivered for the acknowledgment.[22] The video clip may be submitted to the notary public by storing it in a compact disc (“CD”) or Universal Serial Bus (“USB”) which shall be placed in the sealed envelope sent containing the document or instrument for acknowledgment, or by sending the video clip by e-mail or any other means of digital communication.[23]
  • During the scheduled videoconference with the principal, the notary public shall ensure that the process is in full view of the principal, from the opening of the sealed envelope to the attachment of the Notarial Certificate to the instrument or document by the notary public.[24] Should there be more than one principal, each shall be present either singly or in group/s during the videoconference.[25]
    • The principal shall be required to confirm his/her location to the satisfaction of the notary public by showing his/her geolocation through an application with global position satellite (“GPS”) capabilities or by showing the notary public identifiable landmarks or buildings within the vicinity.[26] He/She shall also be required to affix his/her handwritten signature on a blank piece of paper within full view of the notary public for comparison with the signature appearing on the instrument or document.[27]
    • The notary public shall further assess the principal’s voluntariness by examining his/her demeanor and immediate surroundings and by asking searching questions.[28]
  • It is imperative that the Notarial Certificate state that the notarial act was done through the use of videoconferencing facilities in accordance with the RON Rules.[29]

Requirements for the Witnesses to the Instruments and Documents

With regard to those who acted as witnesses to the execution of the instruments and documents, the said witnesses’ respective competent evidences of identity shall be provided by the principal as well,  which shall be done either through personal or courier service to the notary public.[30]

The witnesses shall be present during the videoconference to be conducted by the notary public wherein the latter shall confirm their respective identities and locations, and shall further verify the witnesses’ respective signatures.[31] Lastly, the notary public shall be required to review the video clip submitted by the principal to verify that the witnesses actually saw the principal sign or affix his/her thumbmark or other mark on the instrument or document, as represented.[32]

Copy Certification

Similar to the 2004 Notarial Rules, a Copy Certification may also be requested to the Notary Public through videoconference facilities under the RON Rules.[33] The instrument or document to be certified shall similarly be delivered to the notary public by the principal either by personal or courier service.[34] Upon receipt of the instrument or document for copy certification, the notary public shall determine that the instrument or document to be copy-certified is not a vital record, a public record, or publicly recordable.[35]

  • If the document is a vital record, public record, or public recordable, the notary public shall notify the principal that it cannot be copy-certified and request him/her to cause its retrieval at his/her expense.[36]
  • If the document can be copy-certified, a videoconference shall be scheduled by the notary public and confirm that the instrument exhibited is the same document which was delivered to the notary public.[37]

The instrument or document requested to be copy-certified may also be sent by the principal by e-mail.[38] In such cases, the principal shall take a photograph or scan the instrument or document for copy certification and if it can be copy-certified, the notary public shall print the document and schedule a videoconference with the principal[39]

Once the complete process of copy-certification has been accomplished, the notary public shall prepare the Notarial Certificate stating that the notarial act was done through the use of videoconferencing facilities pursuant to the RON Rules.[40]

Grounds for Refusal to Notarize

In addition to those provided under the 2004 Notarial Rules, the RON Rules states that the notary public shall exercise reasonable effort in assessing the demeanor of the principal or witnesses with respect to notarial acts performed in accordance with the RON Rules.[41]

  • The notary public may refuse to perform the notarial act requested by the principal if the principal or witnesses exhibit/s behavior that engenders reasonable doubt as to his/her understanding of the instrument or document, or otherwise indicates a defect in his/her consent thereto.[42]
  • The notary public shall also refuse to perform the notarial act requested if the principal or witnesses refuse/s to appear before the notary public through videoconference, as required by the RON Rules.[43]

Miscellaneous Matters

  • Payment of fees. Payment for the services performed by the notary public under the RON Rules may be paid by the principal through electronic remittance or bank transfer or any other means agreed upon by the parties.[44]
  • Delivery and retrieval of documents. The principal shall shoulder all expenses in connection with the remote notarization.[45] After any notarial act under the RON Rules has been completed and the corresponding fees paid by the principal, he/she shall cause the retrieval of the notarized documents from the notary either personally or by courier service.[46]
  • Proof of videoconference. The notary public shall take a photograph or screenshot of the videoconference clearly showing all parties who participated in the notarial act and bearing the time and date stamp which accurately reflects when the videoconference was conducted.[47] Additionally, the notary public must be seen holding the instrument or document to make the first page of the notarized document visible and identifiable as such.[48]
    • The photograph shall be attached to the notarial register as set forth in the RON Rules, and shall likewise substitute the principal’s and witnesses’ signatures in the Notarial Register.[49]
  • Notarial Register. In addition to the entries required by the 2004 Notarial Rules, the Notarial Register must include an entry indicated that the notarial act performed was through videoconference under the RON Rules, and must further specify the videoconferencing facility used.[50]
  • Entry of Notarial Act. The competent evidence of identity and photographs or screenshots shall be properly marked with the document number and page number of the relevant entry.[51]
  • Exception to the RON Rules. The RON Rules shall not apply to the execution of notarial wills.[52]

Moving forward with a more permanent remote notarization rules.

The RON Rules are temporary. As stated in one of its provisions, it presupposes the existence of a community quarantine for its applicability. As among the few opportunities brought about by the pandemic, the Interim RON Rules was issued out of necessity; however, a more permanent version should be issued to keep pace with the demands of society. While modern technology allowed transactions to be negotiated, prepared, perfected and consummated remotely, the same technology is likewise outdating the country’s notarial process. Considering the emergence of digitalization of transactions and the rise of Legal Technology (“Legal Tech”) in the Philippines, this is an ideal time for the Supreme Court to explore means of allowing and/or de-regulating digitally-enabled solutions to the delivery of legal services, including notarization.

With respect to this, the Supreme Court may explore further coordination with the DICT on viable options to fully digitize the notarial process through blockchain technology. “A blockchain is a decentralized ledger of all transactions across a peer-to-peer network.”[53] With blockchain technology, participants can partake in and confirm transactions without having the need for a central clearing authority.[54] Some of its benefits include increased transparency, accurate tracking, permanent ledger, and cost reduction, among others.[55] The use of blockchain technology may even eliminate the risk of fraud because a remote online notarial system created using blockchain would ensure that notarial acts carry a unique and secure identifying number.[56] This feature would create extra safeguards for the notarized documents, albeit online. These proposals, however, will be a further step forward from the present RON Rules.

In any case, all these are among the few aspects which the Supreme Court may look into as regards remote online notarization. However, remote online notarization do come with unique challenges. Nevertheless, as this pandemic has taught the legal profession, the same is as resilient and capable as ever. The Supreme Court can rely on the cooperation of the member of the bar and relevant government agencies. In fact, the Interim RON Rules, although temporary, is a breakthrough for remote notarization in the Philippines and a welcome step towards the right direction.

Rest assured that VAL Law will continue to join efforts to elevate the Philippine legal system and profession. The Firm remains advocates for policies that enable and encourage innovation and modernization in the delivery legal services through a legal profession that is free and capable of adapting to rapidly developing technology.

[1] A.M. No. 20-07-04-SC. 2020 Interim Rules on Remote Notarization of Paper Documents [“RON Rules”], July 14, 2020.

[2] RON Rules, Rule I, Section 3.

[3] Id.

[4] Id., Quarantine shall refer to General Community Quarantine (“GCQ”); Modified General Community Quarantine (“MGCQ”); Enhanced Community Quarantine (“ECQ”); and Modified Enhanced Community Quarantine (“MECQ”), as defined by the proper authorities.

[5] RON Rules, Rule I, Section 4.

[6] RON Rules, Rule I, Section 5.

[7] RON Rules, Rule VIII, Section 1.

[8] Id.

[9] Id.

[10] RON Rules, Rule I, Section 2.

[11] RON Rules, Rule I, Section 6(i).

[12] Principal – refers to the person appearing before the notary public whose act is the subject of notarization under these Rules including the person requesting copy certification by videoconference. [RON Rules, Rule I, Section 6(g).]

[13] RON Rules, Rules II and III, Section 1(a).

[14] Id.

[15] Id.

[16] On-demand express delivery services include, but shall not be limited to, Lalamove, GrabExpress, and Transportify. [RON Rules, Rule I, Section 6(c).]

[17] Door-to-door express delivery services include, but shall not be limited to, LBC, JRS, DHL Express, FedEx, and 2go. [RON Rules, Rule I, Section 6(c).]

[18] RON Rules, Rule I, Section 6(c).

[19] RON Rules, Rules II and III, Section 1(b).

[20] Id.

[21] Id.

[22] RON Rules, Rules II and III, Section 1(c).

[23] Id.

[24] RON Rules, Rules II and III, Section 1(d).

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] RON Rules, Rules II and III, Section 1(f).

[30] RON Rules, Rule IV, Section 1.

[31] RON Rules, Rule IV, Section 2.

[32] RON Rules, Rule IV, Section 2(f).

[33] RON Rules, Rule VI, Section 1.

[34] Id.

[35] RON Rules, Rule VI, Section 1(b).

[36] Id.

[37] Id.

[38] RON Rules, Rule VI, Section 2.

[39] RON Rules, Rule VI, Section 2(a) and 2(b).

[40] RON Rules, Rule VI, Sections 1(c) and 2(c).

[41] RON Rules, Rule VIII, Section 6.

[42] Id.

[43] Id.

[44] RON Rules, Rule VII, Section 1.

[45] RON Rules, Rule VII, Section 2.

[46] Id.

[47] RON Rules, Rule VIII, Section 2.

[48] Id.

[49] Id.

[50] RON Rules, Rule VIII, Section 3.

[51] RON Rules, Rule VIII, Section 4.

[52] RON Rules, Rule I, Section 2.

[53] PwC, United States. Making sense of bitcoin, cryptocurrency and blockchain. Available at https://www.pwc.com/us/en/industries/financial-services/fintech/bitcoin-blockchain-cryptocurrency.html, last accessed 10 August 2020.

[54] Id.

[55] Id.

[56] Id.

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