This publication is relevant as of its date. Please note that the situation is evolving very rapidly and we cannot guarantee that the publication is still up-to-date as at the time of reading.
The Russian courts usually accept a power of attorney issued by a foreign entity if it is notarised, apostilled and accompanied by a certified translation into Russian. Because of the pandemic situation and the measures in response being taken by governments around the world, it may be impossible to notarise and apostille a document due to the imposed restrictions.
It should be noted that, according to para. 41 of the Russian Supreme Court Ruling dated 27 June 2017 No. 23 “On consideration of economic disputes arising out of relations involving a foreign element”, a power of attorney issued on behalf of a foreign entity in a foreign state is not considered an official document. Consequently, as a general rule, it does not require mandatory certification in the form of consular legalisation or affixing of an apostille, if it does not contain marks or stamps of official (i.e. public) bodies of a foreign state.
Limited case law demonstrates that some courts accept a power of attorney without an apostille if it is signed by the company’s representative and does not contain any notary stamps or stamps of other public bodies and authorities.
Therefore, if it is not possible to issue a notarised and apostilled power of attorney, one of the alternative options may be to issue the power of attorney with a plain signature of the authorised representative.
According to the limited case law a court may arguably accept a power of attorney if it is not notarised or apostilled (and it should not be notarised under the laws of the jurisdiction where the company issuing such power of attorney is incorporated), but is bilingual or is accompanied by a certified translation into Russian. In this case, the court may also ask for documents proving the right of the signatory to appoint a representative on behalf of the company.
We note that there is another possible alternative way to deal with this situation if the entity issuing the power of attorney is incorporated in the UK. We understand that notaries in the UK are still operating, with some A41465012 2 limitations, and it is possible to notarise a document. The Foreign and Commonwealth Office (the “FCO”) has recently announced that due to the COVID-19 situation it is not able to provide apostilles but is willing to verify a signature or a stamp on record, and can send a provisional confirmation that such signature or stamp is genuine to the receiver of a UK document.
Therefore, in relation to English powers of attorney an alternative possible option may be to get a notarised document with the FCO verification.
At the same time, it is unclear if a Russian court would accept a power of attorney “apostilled” in this way, hence this solution should be relied on in urgent or exceptional cases only.
Moreover, to avoid any complications with the court we advise that a duly notarised and apostilled power of attorney should be obtained as soon as possible when the business gets back to normal.