Jingyun Wang
Convention of 5 October 1961 Abolishing the Requirement of Legalization for Foreign Public Documents (“Convention”) or “Apostille Convention”, was adopted by the Hague Conference on Private International Law in 1961 and had since been ratified by over 120 countries and territories, including Hong Kong and Macao.
On March 8, 2023, China officially deposited the instrument of accession of Convention with the Ministry of Foreign Affairs of the Netherlands which is the official custodian of Convention.
The Convention is expected to enter into force as between China and the contracting States which have raised no objection to its accession on the sixtieth day after the expiry of the period of six months ie November 7, 2023.
The Convention aims to abolish the requirement for diplomatic or consular legalization of foreign public documents for their use in courts or other public administration purposes in other Treaty countries.
The diplomatic or consular legalization here means the formality by which the diplomatic or consular agents of the country in which the document has to be produced certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which it bears. The entire procedure of legalization requires anywhere between a few weeks and several months.
For the purposes of the present Convention, the following are deemed to be public documents:
- documents emanating from an authority or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process-server;
- administrative documents;
- notarial acts;
- official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures.
However, the present Convention shall not apply:
a) to documents executed by diplomatic or consular agents;
b) to administrative documents dealing directly with commercial or customs operations.
For citizens, the Apostille will ease the use of various administrative documents required when working or living abroad, such as birth certificates, healthcare certificates, criminal records, driver’s licenses and academic diploma etc. and will also accelerate the application of visa and working permit.
For Foreign Invested Enterprises (“FIE”) in China, the Apostille will definitely reduce their administrative burden. Currently, in many of circumstances the extract issued by foreign registry or the business license of shareholder/investor of FIE will be required to legalized in order to prove its legal existence. For instance, the incorporation of FIE, transfer of equity, or even change of any information of shareholder/investor.
When it comes to foreign-related civil and commercial disputes, whenever a foreign entity files a lawsuit as the plaintiff with a court of jurisdiction in China, the identity certificates of foreign entities and its authorized representative needs be legalized. The time-consuming legalization procedure will often cause the foreign entity to miss the opportunity for property preservation. This situation is expected to be improved after the abolishment of legalization requirement.
According to China’s declaration to Convention, the Convention will not be applicable between the People’s Republic of China and those Contracting States that China does not recognize as sovereign states which applies to the Hong Kong Special Administrative Region and the Macao Special Administrative Region. This means that the public documents between Hong Kong/Macao and China mainland still needs to be transferred by qualified authority. However we have noticed recently that some pilot administrations in Shanghai have exempted the requirement of notarization and transfer of Hong Kong corporate documents.
The Government of the People’s Republic of China designates the Ministry of Foreign Affairs of the People’s Republic of China as the competent authority to issue the certificate of Apostille.
The application of Apostilled documents in China depends on the detailed implementing rules and regulations subsequently issued by Chinese administrative and judicial authorities. Even so China’s accession to the Apostille Convention is a welcome evolution as it seems to be part of China’s wider efforts to improve ease of business and reduce “red tape”, in particular when it comes to foreign business.
