--Edited by Li LIU(Sharon) and Xiaofang CAI

 

On November 7, 2023, the Convention Abolishing the Requirement of Legalization for Foreign Public Documents (referred to as "the Apostille Convention") is officially put into force in China, marking a significant move in facilitating cross-border transfer of legal documents.

 

What is Apostille Convention:

 

The Apostille Convention, established by the Hague Conference on Private International Law (HCCH) on October 5, 1961, stands as a international treaty with broad applicability and boasts the largest number of contracting parties within the HCCH framework. Its primary goal is to simplify the global exchange of public documents.

 

The Apostille Convention has 126 contracting members as of October 2023.

 

Scope of Application:

 

As for the scope of application of Apostille Convention, there are the following “Public Documents” applicable between the contracting parties.

 

The Convention covers a variety of "Public Documents" exchanged among its signatory nations, including:

 

(1) documents issued by an office or an official connected to the courts or tribunals of a state, including those issued by a public prosecutor, a clerk of a court or a process-server,

(2) administrative documents,

(3) notarization certificates, and

(4) official certificates attached onto documents signed privately, such as letter of identification, registration approval.

 

Under the Apostille Convention, public documents within its scope no longer require consular authentication when transmitted between China and other contracting countries. Instead, parties involved need only apply for the additional certificate (Apostille)

 

Impact on China's Cross-Border Legal Landscape:

 

Previously, the main means of authenticating foreign documents were still diplomatic or consular authentication. In most cases, foreign documents must first be notarized by a public notary in the country where the document is issued, and then authenticated by the Chinese embassy or consulate in that country. If the country concerned has not established diplomatic relations with China, authentication can be performed in a third country that build diplomatic relations with both that country and China. Needless to say, the procedures described above are costly and time-consuming, often requiring at least several months to complete.

 

After the Apostille Convention puts into effect, following advantages can be anticipated.

 

Efficiency Boost: Because diplomatic or consular authentication is unnecessary any more, the implementation of the Apostille Convention in China will significantly reduce the time and costs for cross border transfer of documents.

 

Legal Proceedings Simplified: In judicial proceedings, the provisions of Apostille Convention can be specifically applied to cases where foreign entities file lawsuits in Chinese courts. With the Apostille certificate, the previous requirement of the legalization of foreign legal documents such as Power of Attorney or Business registration certificate by the Chinese embassies and consulates is spared, with these documents only needed to be notarized locally.

 

Speedy Procedures: The average time for document transfer procedures between contracting countries will decrease by about 90 percent.

 

Will the Apostille Convention continue to apply to Hong Kong and Macao?

 

Yes, the Convention will continue to apply to the Hong Kong Special Administrative Region and the Macao Special Administrative Region of the People's Republic of China.

 

Our conclusion:

 

Considering the difficulties in cross-border transfer of public documents, the implementation of the Apostolic Convention in China will greatly improve the efficiency for foreign entities in safeguarding their legal rights in China. By simplifying procedures and eliminating diplomatic or consular authentication work, it is expected that this will greatly help reduce the costs and time of the foreign clients in enforcing their legal rights such as intellectual property rights in China.