On 8 March 2023, while the world was celebrating International Women’s Day, Tan Jian, China’s ambassador to the Netherlands, deposited China’s instrument of accession to the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (also known as the Apostille Convention and referred to here as ‘the Convention’) with the Ministry of Foreign Affairs of the Netherlands, acting as the depository of the Convention. This marked China’s official accession to the Convention, which will come into effect in China on 7 November this year.
What is the Convention?
The Convention (full text can be found here) was signed on 5 October 1961 and became effective on 24 January 1965. It is intended to simplify the procedure of certifying documents between the contracting states of the Convention by removing the onerous legalisation formalities other than apostille.
Under Article 2 of the Convention, “legalisation” 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 Convention exempts its contracting states from legalisation of the applicable documents which have to be produced in their respective territories. Instead, the only formality that may be required in order to certify the documents is apostille. An apostille is a certificate placed on the document itself or on an “allonge” by the competent authority of the state of origin. It must conform to the model form annexed to the Convention, e.g. it must carry the title of “Apostille (Convention de La Haye du 5 Octobre 1961)” in French.
What does it mean to China?
Since China opened its door to foreign businesses in the late 1970s, there have been increasingly more occasions where foreign documents have to be produced in China. For example, when a foreign investor makes an investment in China, it is required to submit its certificate of incorporation, business registration certificate and/or equivalent documentation, among others, to the competent Chinese governmental authorities to evidence its due establishment and good standing. In lawsuits involving foreign parties, Chinese courts require power of attorney before the foreign parties’ attorneys are allowed to attend the proceedings, and it is very common that the parties will present documents of foreign origin as evidence in the courts.
Currently, the primary means to certify the foreign documents remains legalisation. In most cases, they must first be notarised by a notary public in the state where the documents originate, and then be legalised by the Chinese embassy or consular in such state. In some states, additional steps are required: for example, as part of the legalisation process in Germany, the documents must also be authenticated by a district court (Landgericht) and the Federal Agency for Foreign Affairs (Bundesamt für Auswärtige Angelegenheiten). If there are no diplomatic relations between the relevant state and China, the legalisation can be conducted in a third-party state which has diplomatic relations with both the state and China. Needless to say, the procedures are costly and time-consuming as they usually take several weeks at least. We are aware of extreme cases where they took half a year during the Covid-19 pandemic.
The protracted process could lead to various adverse consequences, such as delays in project timetables or inadmissibility of evidence in the courts. So, the call for China to join the Convention and simplify the legalisation requirements has been persistent in the past few decades.
After the Convention becomes effective in China, the document certification process will certainly be more efficient and hence save time and money. China’s Ministry of Foreign Affairs estimates that the time required to complete the streamlined procedures will be reduced by 90 per cent on average. This holds particularly true for the 10 or so contracting states of the Convention which currently do not have diplomatic relations with China – instead of going to a third-party state, their documents can be certified by apostilles which will be recognised by China despite the lack of diplomatic relations.
Notably, foreigners will not be the only beneficiaries of China’s accession to the Convention. Nowadays, Chinese companies and citizens are also trapped by the cumbersome legalisation requirements. When a Chinese company invests abroad or a Chinese citizen goes to study or work in another country, they will often need to produce certain documents (e.g. business license or birth certificate) in China, which must be notarised and then legalised by a provincial-level Foreign Affairs Office. After November, they will be able to get the documents authenticated by apostilles, within “a few business days” according to China’s Ministry of Foreign Affairs.
While the long-awaited accession is a positive and welcome development, there remain several issues to watch out for:
- As China declared at the time of accession, the Convention will not be applicable between Mainland China and Hong Kong or Macao (both of which are already parties to the Convention). Legalisation of documents between these territories will continue to rely on the current mechanisms (e.g. attestation by a China-appointed attesting officer).
- Until 8 September 2023, i.e. six months after China’s accession to the Convention, any current contracting state can raise an objection to such accession, in which case the Convention will still come into force as regards the relations between China and those states which do not raise an objection, but not the objecting state(s).
- Most importantly, it remains to be seen whether China will recognise apostilles on all foreign documents. As the Convention only covers public documents (which are defined in Article 1 of the Convention), certain documents, e.g. power of attorney or affidavits, may not qualify as public documents and thus not enjoy the convenience provided by the Convention. This key issue will require further clarifications by the Chinese authorities and courts.