No more legalization: the influence of the Apostille Convention on entry documents

So far, there are 124 contracting states to the Apostille Convention. The entry into force of the Apostille Convention will greatly facilitate and simplify the procedures of cross-border circulation of public documents.

The core contents of the Apostille Convention are two aspects: (1) cancellation of consular legalization, which stipulates that the contracting states shall exempt the public documents within the scope of this Convention from consular legalization; that is, the documents do not have to be certified by the diplomatic or consular personnel of the country where the documents are located as to the authenticity of the signatures, the identity of the signatories, and, where necessary, the names of the seals or seals used for certifying the documents. (2) use the Apostille, which stipulates that the Hague Apostille shall be issued by the competent authorities of the country where the documents originate to certify the authenticity of the signatures on the documents, the identity of the signatories and the names of the relevant seals. The Hague Apostille shall be made on the documents in accordance with the format of the Hague Apostille Convention.

The following will focus on the impact of the Apostille Convention on entry documents after its entry into force in China:

Entry documents refer to documents generated outside the territory and used for domestic purposes, including 1) various types of public documents used by foreign investors or individuals in China, such as subject qualification certificates; and 2) the documents issued by foreigners, representatives of foreign enterprises or organizations without being notarized by notary organs, such as Power of Attorney.
China's accession to the Apostille Convention will greatly enhance the efficiency of the delivery of entry documents, and greatly facilitate the business activities of foreign investors in China.

For example, before the Apostille Convention takes effect in China, U.S. investors are required to submit consular certified corporate entity documents (i.e., such documents are required to be authenticated by the Chinese embassy in the U.S.) for investing in China, incorporating companies and creating equity pledges, etc., and the time needed for consular certification must be set aside in advance for such transactions. After the Apostille Convention takes effect, U.S. investors only need to obtain Hague Apostille from the U.S. certification authority for their corporate entity status. The Hague Apostille Authority in the U.S. includes court, secretary of state, etc., which is usually the authority responsible for local company registration.

Similarly, prior to the entry into force of the Apostille Convention for China, the Power of Attorney sent or entrusted from outside the territory shall be notarized by the notary public of the issuing country and certified by the Chinese consul, or the certification procedures stipulated in the relevant treaties concluded between China and the host country shall be fulfilled. It is worth noting that if a foreigner, the representative of foreign enterprise or organization signs the Power of Attorney in China, under the circumstances that meet the following conditions, it can be exempted from being notarized by the issuing country's notary organ and Chinese consular legalization: (1) is signed under the witness of a judge in China; (2) is notarized by a Chinese notary public.

After the Apostille Convention enters into force in China, the Power of Attorney mailed or entrusted from abroad shall still be notarized by a notary in the issuing country, and an apostilled document shall be obtained issued by the competent authority of such country. The Power of Attorney is a document issued by a foreigner or representative of a foreign enterprise or organization, and thus does not fall within the scope of public documents as defined in the Apostille Convention. (However, the Power of Attorney shall be within the scope of the aforesaid public documents if it is notarized by a notary organ and a notarial document is issued thereby.) In other words, the Power of Attorney mailed or entrusted from abroad may still be subject to procedures to be notarized by a notary organ in the issuing country, but there is no need to obtain consular legalization from a Chinese embassy or consulate, instead, the apostilled document shall be obtained after the notarial documents are received. The Power of Attorney signed under the witness of a domestic judge in China or the notarization of a Chinese notary organ shall, in principle, not be affected by the effectiveness of the Apostille Convention.

Lastly, it should be noted that the Apostille Convention is only effective between China and the contracting States that have not raised objections to China's accession. For foreign-related documents involving parties to non-contracting States or Contracting States that have raised objections to China's accession shall still be subject to the so-called "dual-certification mode" rules for cross-border circulation of documents. That is, the documents notarized by the notary organ of the issuing country also need to be sent to the embassy and consulate of the using country for legalization.

Author: Jasmine Liu, Senior Associate, IPO Pang Xingpu Law Firm

About IPO Pang Xingpu Law Firm:

IPO Pang is AGA's legal representative in Shanghai Province, China. Also offering business services, the team is highly educated, experienced, and motivated to help serve foreign enterprise clients who are expanding into new territories. All at the firm strive to constantly provide clients with outstanding service, and do so in a timely and cost-effective manner.