Convention Abolishing the Requirement of Legalisation for Foreign Public Documents Coming into Force in China Soon

On 23 October 2023, the Ministry of Foreign Affairs of the People’s Republic of China (“the MFA”) announced that the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (“the Convention”) shall enter into force in China on 7 November 2023.

The MFA also made a supplementary note that the Convention shall become binding between China and Canada on 11 January 2024. In addition, the Convention shall become binding between China and Rwanda on 5 June 2024. Besides, the Convention does not apply between China and India.

Definition of Foreign Public Documents

The Convention, which is commonly known as the Apostille Convention, was concluded on 5 October 1961 at the Hague and has 125 Contracting Parties as of 23 October 2023.

The Convention makes a positive change by introducing the addition of a certificate under Article 3(1) of the Convention, i.e., an Apostille, in lieu of the traditional approach of legalisation to certify the authenticity of the origin of the foreign public documents.

According to Article 1(2) of the Convention, the Convention is applicable to the following foreign public documents:

1. 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;
2. administrative documents;
3. notarial acts;
4. 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, two types of foreign public documents are excluded from application of the Convention under Article 1(3) of the Convention:

1. documents executed by diplomatic or consular agents; and
2. administrative documents dealing directly with commercial or customs operations.

Apostillisation

An Apostille is a certification of origin instead of verification of content and has the same effect and outcome as legalisation.

An applicant, either an individual or a legal person, may apply for an Apostille with the Competent Authorities in the Contracting Parties where the public documents are emanated from, namely the State of Origin.

Unless otherwise stipulated by the domestic laws or regulations of the State of Destination, a validly issued Apostille has effect for as long as it is identifiable and remains attached to the underlying public document.

Each Contracting Party is obliged to give effect to an Apostille. Nevertheless, there is a possibility that an Apostille is rejected by the State of Destination for multiple reasons. For instance, the Issuing State is not a party to the Convention. If an apostillised document is not a public document of the State of Origin, an Apostille attached to such a document may also face a rejection.

In addition, under Article 7(2) of the Convention, at the request of any interested person, the Competent Authority which has issued the Apostille is required to verify whether the particulars of the Apostille correspond with those in the register.

Timeframe

Most Apostilles are issued on the same day they are requested. However, the actual timeframe may vary based on the practice of the local Competent Authorities of different Contracting Parties.

For example, in China, the Consular Division of the MFA will handle the application within four (4) working days in general and two (2) working days under an expedition request upon acceptance of a request for an Apostille.

Costs

The Convention does not prescribe the cost of requesting an Apostille. As such, it is the discretion of the local Competent Authorities in different Contracting Countries to determine whether to charge the official fees for requesting an Apostille.

For example, in China, an official fee of RMB 100 will be charged by the Consular Division of the MFA for an Apostille attached to the documents relating to commercial operation and an additional cost of RMB 50 will be incurred for each expedition request.

Public Documents from China (State of Origin) to Other Contracting Countries (State of Destination)

The cross-border use of the public documents emanated in China and to be produced in other Contracting Parties only requires an Apostille issued by the Competent Authorities of China without the legalisation by the Chinese authorities and the foreign embassies and consulates in China. Samples of the Chinese version of Apostilles released by the MFA can be seen below:

The MFA is the Competent Authority in China. Meanwhile, authorised by the MFA, the Foreign Affairs Offices of provinces, autonomous regions, and municipalities directly under the China’s Central Government can issue the certificates to public documents emanated within the respective administrative areas.

To request an Apostille for the public documents emanated in China, the applicant may visit http://cs.mfa.gov.cn/zggmcg/fjzms/bzxz/ for more details.

Public Documents from Other Contracting Countries (State of Origin) to China (State of Destination)

Similarly, the cross-border use of the public documents emanated in other Contracting Parties and to be produced in China also only requires an Apostille issued by the Competent Authorities of other Contracting Parties without the legalisation by the local authorities and the Chinese embassies and consulates in other Contracting Parties. A sample of an Apostille annexed to the Convention can be seen below:

Following the MFA Announcement, several Chinese Embassies in other Contracting Parties to the Convention have announced that they will not handle the legalisation matters since 7 November 2023, including the Chinese Embassies in the United Kingdom, the United States, France, Japan, Germany, etc.

These Chinese Embassies also reminded that the issuance of an Apostille does not necessarily mean that the public documents to which the Apostille is attached will be accepted by the Chinese authorities where such public documents will be produced.

These Chinese Embassies further recommended that the applicant of an Apostille consult with the Chinese authorities where such public documents will be produced on the detailed requirements for an Apostille attached to the foreign public documents, such as the format and contents of an Apostille, and whether any translation is required, before requesting an Apostille.

In a nutshell, the implementation of the Convention will give the green light to the free circulation of the notarised and apostillised public documents between China and other Contracting Parties to the Convention soon.