By Rebecca Robitaille

The purpose of this article is to inform creditors regarding the complexities of suing internationally and more specifically the role of Power of Attorneys. It is important that creditors understand that international litigation is more costly and involved than litigation in the United States. Otherwise, they may have unrealistic expectations as to the timelines and progress of their international claim and will be less inclined to cooperate when their assistance is required.

A major requirement for international litigation is the creditor's valid Power of Attorney ("POA") document which authorizes one or more of the attorneys in the international law firm to proceed with litigation and settlement negotiations on the creditor's behalf. A POA may also be required for pre-litigation negotiations. Without the POA, the foreign attorney lacks credibility. A letter from the collection agency or the agency's attorney managing the foreign collection will not suffice.

In preparation for litigation, the POA must be validated for use in the foreign country. This process begins with an original, notarized POA document which then requires one of two methods of authentication. The method of authentication is determined by the country in which the document is intended for use.

The first method of certification is by obtaining an Apostille certificate, which is provided for under the Hague Convention Abolishing the Legalization of Foreign Public Documents ("HLC"). The Department of State office where the Notary Public is commissioned is responsible for providing said certificate. The purpose of the Apostille is to certify the authenticity of both the signature and capacity of the public official (Notary) who signed the document, as well as the authenticity of any stamp or seal affixed to the document. This simpler form of authentication only applies to the approximately sixty member countries and states which are currently signatories to the HLC.

For those countries not party to the HLC, the chain authentication process is required. This is a time-consuming and multi-step process involving County (only required in some States), State, Federal and Consulate level certification. The County and State levels are required as a first step to certify the good standing of the Notary Public who signed the document and to certify the signature and any stamps and seals applied to the document. The certified document is then sent to the U.S. Authentications Office in Washington, DC for authentication by the Secretary of State. The process is finally completed at the appropriate Consulate office of the country where the POA is intended for use. The Consulate will affix their final legalization to the certified POA after which time it is ready to be forwarded to the international attorney.

Furnishing a valid POA is one of several obstacles to overcome in international debt collection, and in many countries, an essential part of litigation.

Rebecca Robitaille is International Claims Manager and Legal Assistant to David Franklin, Ad.E., with the Montreal law firm Franklin & Franklin. She has over ten years of experience in the legal and management fields and has been with Franklin & Franklin (www.franklinlegal.com), focusing on international debt recovery and litigation, for almost four years. Rebecca speaks English and French and can be reached at rebecca@franklinlegal.com.

Note: The above article originally appeared in the Summer 2010 Issue of the Commercial Collection Agency Association's Collage newsletter.

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