Cet interview est donné pour servir de base à une table-ronde modérée par Marie-Anne Frison-Roche, dans le forum international du droit qui se tient à Saint-Pétersbourg le 16 mai 2012. Il est disponible sur le site du forum, Organisé par le Ministère de la Justice de la Fédération de Russie.
What are the main challenges for notariat in the XXI century? In particular, how globalization affects notariat ?
• Firstly, we can observe that the notarial professions are quite close to each other, despite the diversity of States and their history. Thus, the notarial profession exists in Russia since the nineteenth. Even if notaries became civil servants because of the Revolution, it is again a liberal profession since 1993 while retaining ties to the State, as in France. It is always whatever the country a profession highly structured, externally by the State, within the professional discipline, which tasks (including real estate) and powers (including ensuring exchanges) of its own. This is true whether you are in Russia, France or China.
• • It is from there that we should think the main challenges for notaries in the twenty-first century, particularly face to globalization.
• At first glance, globalization may seem a great danger, even a sort of defeat of notaries, if you analyze this profession just as the “hand of the State”, for example for the certification of acts. Indeed, globalization has blurred the boundaries. The problem is that the State cannot think itself outside of a report on its borders. And even assuming agreements between States, sovereign subjects of international law, States are still too slow to be effective in globalization. Notaries, if you define them only through the fact of their historical relationship to the State, would therefore be in the same difficulty.
• But, in a second time of the reflection, you must admit that, if the boundaries are dissolved, the land remains, contracts are increasing, the need for legal certainty increases. The more a country wants to grow, the more it wants a very strong profession that provides certainty about properties rights, the lands’ contours, their holders. Without private property rights and this certainty, there is no market possible. This is why China, while it was open to the market economy, has established notaries. Thus, notaries are the link between the States that give rise and the markets they provide security.
In my sense, the challenge for notariat is to not forget its links with the State, because State gives the special legal powers to notaries and at the same time to understand its special utility for markets. For the first, demonstration is made, for the second, demonstration must be consolidated.
Could you please specify at what extent the legal integration of notariat is necessary for different countries with different systems of a law?
• Once again, we must begin to say that notariat is necessary if and only if it is useful for people and for business. The State imperium isn’t sufficient in a globalized world, because Law is a practical art, based on its ability to achieve its purposes and to propose a useful tool to people. This is why economic agents pay.
• Markets need legal security and they are larger than the states. We have seen notariat can offer it. This is why different countries’ notariat must adopt similar rules, have a lot of communication between them, common database, exchange system of information not only about Law but also about economic. The international integration of notarial organzations is a response to globalization.
• Morever, I think professional organizations of notaries should be the same, must adopt the same standards of conduct, the same protection requirements to protect customers, the same disciplinary procedures against the indelicate notary. Thus, despite the differences between legal systems, it's the same concept that appears: the confidence that can be done to the profession, as it derives its power from the State and as it is always structured the same way regardless of the legal system where the person utilizing the service of the notary.
If there is any link between notariat and economic growth?
• There is a link between the notary and economic growth which implies security of property rights, which are secured by real estate matters only by notaries.
• Moreover, the crisis that all economies cross shows that the most precious is trust. This “common good” is what we call "public service" before. Trust cannot belong to a private person and it is the States that defend it. In this, the notaries, who have a link with the States, can remain the guarantors. Financial guarantee, discipline and ethics are common in this direction.
• Finally, markets must stop working on the short term as the financial market must cease to be the model. An economy can only grow if it can rely on long-term economic projects, particularly infrastructure projects, assuming long-term investment, which implies confidence in the aftermath, security in the properties, reliable persons available
• Notaries are at the heart of what economic development can be. It is true that there isn’t the financial model. But the financial market dramatically shows its limits when he begins to devour the economy rather than the feed.