President of the National Council of Notaries
The Notary is delegated by the State with a number of functions:
– give public trust towards the acts, among these I mention the main ones: real estate deeds, corporate deeds, wills, powers of attorney, etc.;
– monitoring and checking anti-money laundering (and the percentage of reports made by notaries amount to 91% of those of all professionals obliged to do so);
– fight illegal construction;
– fight tax evasion by collecting indirect taxes on behalf of the State;
– ensure the reliability of the data entered into the public registers of the land registry of the conservatory and the register of companies, feeding them only with certain acts and in accordance with the law and regulations;
– ensure deflation of litigation through the prevention of litigation.
It can be considered fake news that entrusting control to the Notary is a return to the Middle Ages, and constitutes a factor in slowing down economic and legal traffic.
The reality is very much on the contrary.
According to the authors of the Doing Business report issued by the World Bank, they say that they have begun to measure the attractiveness of countries not only on the basis of the “speed” with which transactions take place, but also taking into account the security and guarantees that that system offers.
As seen from a liberal approach, the market without rules finds, sooner or later, its own antibodies that make it somehow work. The idea has come about by looking at the monitoring features of upstream legality, which acts as a filter of validity and durability of transactions. It is also a guarantee of reliability of those Registers (real estate and commercial) in which these transactions are accessed by third parties and which not surprisingly, can be for the most part fed only by notaries or magistrates.
So then why are public registers and the reliability of the data they contain so important?
The answer to this question is simple.
Real estate traffic would be at an eternal standstill if no one were certain that their seller is the real owner of the property a potential buyer is interested in purchasing and perhaps, investing his/her life savings.
The transfers of companies, the establishment of companies, and the intervention in acts of representatives of the same could never take place securely if the data from the consultation of the Register of Companies were not reliable.
It is no coincidence that in common law countries the commercial registers highlight a disclaimer in which it is warned that the data are not reliable and must be checked with the help of a lawyer.
This is the reason why Italy in the “Registering a Property” sector, in terms of “speed” has risen from the 60th to 23rd place out of 190 countries, in just 4 years. However, in terms of security and reliability, Italy is in 6th place before Spain, France, England and the United States, as well as Germany. Headlines have come up in newspapers such as ‘Il Notariato’ pulls Italy in the Doing Business rankings”.
And it is no coincidence that in the “Starting a business” sector since 2013, Italy has recovered about 24 positions, which are equal to the US and better than Luxembourg, Switzerland, Spain, Japan, Austria and Germany. Thanks to the fact that (i) the Notary, rather than the Judge, takes care of the approval of the acts, that is, verifies their legality; (ii) and registers them electronically in the Business Register. All this shows with numbers in hand that the reliability of the Public Registers translates, even according to the World Bank itself, into a remarkable economic value in terms of GDP and the “competitiveness/attractiveness” of the country for investors, in general, but especially for foreign ones. These more than any other need certainties, guarantees and a third-party impartial professional who acts as a consultant, as a “cultural mediator” but, above all, who ensures them to minimize – if not eliminate – the risk of litigation. The fear of litigation is among the most felt by foreign investors.
This is the perspective from which an important memorandum of understanding was signed in 2019 between the National Council of Notary Public and the Institute of Foreign Trade, testifying to the fact that the Italian notary is excellence to be exported. The National Anti-Mafia Prosecutor Mr Federico Cafiero de Raho highlighted how: “legality is not a factor of slowdown, but of development of a healthy economy”. Even President Draghi, on the occasion of his inauguration speech, said that “without legality and security there can be no economic growth” and, in a subsequent assembly, speaking of the vaccine, he exalted its nature not as an obligation but, on the contrary, as an instrument of freedom and security to start again faster than before.
What is the strength of the vaccine? That of preventing the disease rather than treating it and avoiding the collapse of the hospital system with incalculable risks and costs for the State. Well, the notary is a bit like the vaccine, it serves to prevent litigation rather than cure it and to avoid the collapse of the justice system. And this should not be seen as an obligation, a gabella, but as an opportunity not only for the private citizen but also for businesses.
It is not exact to say that the notary exists only in Italy and that common law systems are more efficient than civil law systems. The Latin notary actually exists in 22 out of 27 countries of the European Union and in 89 countries in the world, among the most industrialized. Moreover, the history of the last 15 years, starting from the subprime mortgage scandal, passing through that of the Panama Papers and Shell companies, has shown how the common law system is fallacious and puts at risk the keeping of public records. Just think of some data: in the United States, for example, the damages from identity frauds according to the FBI, in 2003 amounted to over 52 billion dollars and affected 10 million people. It should not be surprising, therefore, that for some years in the countries of “common law” the phenomenon of the so-called “Lawyer for the Situation” has been spreading. That is instead of having two lawyers (one on each side), the jurist performs an impartial service that benefits all the interested parties and whose overall costs are reduced to half. Therefore, it is no coincidence that in countries with emerging economies such as China, Russia and even Uzbekistan, which have recently faced the recognition of private property, it has been expressly decided to implement a system of Notary modelled on the Italian one.
It is not accurate to say that entrusting tasks to the notary is a return to the Middle Ages, assuming that the category is not sufficiently digitalized and in step with the times. The notary is among the most advanced professions from a technological point of view. In the 90s the idea of establishing, within the National Council of Notary Public, an entity such as Notartel that represents the real IT arm. Since then, notaries have been interconnected with each other thanks to the Unitarian Network of Notaries who record, transcribe and transfer the documents with a click by sending the relative copies in format and with a digital signature, stipulate computerized public deeds, send the documents to the Business Register electronically, and so on. Today the Notary is called to a further technological challenge which is the establishment of online companies, that is, with the customer connected by videoconference remotely. The Notary will offer all those guarantees that the “do it yourself” mode existing in some realities does not offer. It is just as much, if not faster and it does not require advice from third parties, as this task is fulfilled by the notary. It guarantees accurate and effective anti-money laundering control and contributes to the fight against organised crime.
It is to be considered as fake news that the progress of blockchain technology and artificial intelligence, as well as certified digital identity, will supplant or render useless the role of the Notary.
The Notary of 2021 is not only not suspicious of digitization as a harbinger of the risk of disintermediation, but on the contrary has believed for years that technology, correctly used, in an ancillary and instrumental function, can undoubtedly contribute to making one’s professional service more effective in performing, provided that one does not lose sight of a fundamental principle, “If civil service is the result of a delegation conferred by the State, this trust cannot be betrayed by sub-delegating it to a machine”.
We must not be dazzled by the mistaken idea that Artificial Intelligence can replace notaries, lawyers, judges, accountants, labour consultants, and others, nor that blockchain can replace, for example, the mechanism of public land registers which is the flagship of our system. The blockchain is limited to replicating and guaranteeing the immutability of the data once entered but does not guarantee at all the “quality” and “lawfulness” of the same data, nor the identity or spontaneity of the will of the subject who entered it.
In fact, the initial presence of an individual in the flesh who investigates the intention, can interpret its greater or lesser spontaneity (for example the person may be at gunpoint), and adapt it to the rules of the law, thus performing that “maieutic” function that some have recognized to the notary, to sew clothes (ie contracts) tailored to the personal needs of each subject.
The fact that in the blockchain the validation derives from the consensus reached by 51% of the nodes, implies that the “responsibility” or the “paternity” of said validation is assumed by everyone and therefore by no one. The philosopher Ferraris also supported it, “I can be replaced by a car to get more information or to simplify a routine job, but I cannot be replaced by a machine to make decisions, to give guarantees, to take responsibility”. The blockchain, in other words, cannot offer that “heritage of trust”, that “Publica Fides” that only a human being who assumes responsibility for his own actions can guarantee. In other words, the point of balance is given not so much by the robotization of man, but rather by the “humanization of technology”.