- Introductory remarks
- The apostille
- What is a public document?
- Which authority issues an apostille?
- Where does the Convention apply?
- Which countries are signatories to the Convention?
- Other legalisation conventions
Editor: Willem van Arnhem, former head of the Private International Law Section, Ministry of Foreign Affairs
1 Introductory remarksAccording to the explanatory memorandum to the Kingdom Act of 10 March 1965, its aim was, in the context of international legal affairs between the countries signatory to the Convention, to abolish the legalisation, as required by various countries, of the public documents to which the Convention refers, and to replace it with a simple formality.
Under article 2 of the Convention, the contracting States are required to exempt from legalisation public documents which have to be produced in their territory. For the purposes of the Convention, legalisation means only the formality by which diplomatic or consular agents certify the authenticity of the signature on the document. This limited definition of the term legalisation has more far-reaching implications than one might think at first sight.
In the normal course of affairs, only signatures known to the consulate will be legalised. Generally speaking, the signatures are those of competent officials of the Ministry of Foreign Affairs in the country of origin. It is usually necessary for a document to be legalised by a number of bodies, resulting in a series (either long or short) of signatures, so that the consul can legalise a signature he is familiar with. With the abolition of legalisation by the consular agent, the series of previous legalisations is no longer necessary either.
The simple formality which has replaced legalisation is the addition of a certificate, or 'apostille'.
Many local authorities believe that documents originating from countries which are signatories to the Convention do not require legalisation. This is incorrect. Such documents need not undergo the lengthy legalisation process but they must always have an apostille appended.
2 The apostilleSpecimen apostille
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APOSTILLE (Convention de La Haye du 5 octobre 1961) 1. Country: . This public document 2. is signed by 3. acting in the capacity of 4. bears the stamp/seal of . .. Certified 5. at .. 6. on 7. by . 8. No. . 9. Stamp/seal .. . .10. Signature: . . |
If the Convention does apply to a document, it is important to check whether the apostille has been appended. If properly completed, the apostille confirms the authenticity of the signature, the capacity in which the signatory has acted and, where necessary, the identity of the stamp or seal on the document. If there are doubts about the origin of a document, an interested party may contact the authority responsible for appending the apostille.
3 What is a public document?In view of this, all documents which are not private instruments are deemed to be public documents. The Convention specifies the following:
- 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:
Since the Convention refers to 'the courts or tribunals of the State', this must be taken to include all judicial decisions given in a contracting State, thus not only the judgments of the courts, but also those given by other, special tribunals and even ecclesiastical courts if they are acting as tribunals of the State.
- administrative documents;
These include all documents issued by the administrative authorities in a contracting State. The explanatory memorandum referred to above gives diplomas and degree certificates as examples. Certificates of birth/death/marriage and extracts from the population register also fall into this category.
- notarial acts;
All instruments drawn up by a notary fall into this category.
- 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 authentications of signatures;
The explanatory memorandum assumes that the legalisation of a private instrument by a notary is deemed to be an official certificate, so that the document in question is covered by the Convention and may have an apostille appended.
The Convention does not apply to:
- documents drawn up by consular and diplomatic agents. For example, a declaration drawn up by the Japanese Embassy in The Hague to the effect that a person is unmarried does not require an apostille.
- administrative documents relating directly to commercial transactions or Customs formalities.
An overview of all the designated authorities in the various countries is to be found at the website of the Hague Conference on International Private Law: (www.hcch.net), under Conventions, then No. 12 Convention of 5 October 1961 abolishing the Requirement of Legalisation for Foreign Public Documents.
If there are doubts about the origin of a document, an interested party may contact the authority responsible for appending the apostille. Article 7 of the Convention obliges the competent authorities to keep a register or card index in which the apostilles issued are recorded. Such as system must specify:
- the number and date of the apostille;
- the name of the person signing the public document and the capacity in which he has acted;
- if the document is unsigned, the name of the authority which has affixed the seal or stamp.
The date given after a countrys name is the date on which the Convention entered into force in that country.