On the whole, the Apostille Convention made international service of process and international litigation in general a more streamlined process.
Legalization Procedure Prior to the Apostille Convention
Prior to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents1 (also known as the “Apostille Convention”), documents originating in one country for use in another country went through a lengthy legalization process meant to satisfy a foreign court or person that the document was indeed what it proclaimed itself to be.
For certain documents, this legalization process, or chain of authentication, took a meandering route through the hallowed halls of government at every level until it made its way to the consulate of the relevant country. As explained in the International Notarial Practitioner,
For a U.S.-originating document, the most onerous process for legalization would be as follows:
- Notarization by a U.S. notary;
- Legalization of the notary by a county clerk;
- Legalization of the county clerk by a state Secretary of State;
- Legalization of the Secretary of State by the U.S. Department of State;
- Legalization by the consul of the signature of the U.S. official;
- Legalization by the Foreign Minister of the signature of the consul;
- Notarization of the entirety by a notary of the enforcing jurisdiction.2
One government entity certifies the validity of the previous government entity’s signature and so on, ad nauseum. Practitioners can readily see what a burdensome and time-consuming process is legalization.
The Apostille Convention replaces this cumbersome chain of authentications:
“Its purpose is to abolish the requirement that public documents intended for use in a country other than their country of origin be legalized (i.e., authenticated, or certified) by a diplomatic or consular officer of the country of use, who is stationed in the country of the document’s origin (the legalization being often the last step in the “chain-certificate” method of document certification).”3
The Convention eliminates legalization by the above-described method. In its place, a single government entity, designated by the State at the time of ratification, certifies the validity of the notarial signature on the public document, thus constituting the entire process of legalization.4 “The Convention reduces all of the formalities of legalisation to the simple delivery of a certificate in a prescribed form, entitled “apostille,” by the authorities of the State where the document originates.” 5
What is an Apostille?
An apostille is the actual physical certificate attached to or affixed on the document to be authenticated. It identifies and certifies:
- The country in which the public document originated
- The signer of the public document
- The capacity of the individual signing the document
- The seal or stamp of the signer
- Where the certification was executed
- The date on which the certification was executed
- The index or serial number of the certification
- The seal or stamp of the certifying authority
- The name, official capacity and signature of the certifying authority6
Effect of an Apostille
The practical and time-saving implications of the Apostille Convention are tremendous.
Instead of sending a default judgment issued by the state of Kansas, for example, to the Douglas County Clerk for notarizing, then to the Secretary of State for legalization of the county clerk, then to the State Department for legalization of the Secretary of State and so on, the notarized default judgment makes one quick trip to the Secretary of State of the State of Kansas to receive its Apostille.
Documents originating in Federal Court receive an Apostille from the clerk of that court. Documents obtained through various government agencies have specified entities to certify them. Article 6 of the Convention requires contracting States to designate the authorities who are competent to issue the Apostille.
The Convention also mandates that issuing authorities keep a register recording the vagaries of the certificates issued. To verify the authenticity of an apostille, the authority need only verify whether the particulars in the certificate correspond with those in the register or card index.7
Once a document has an apostille, a foreign court cannot require further certification or authentication of the document. The Convention exempts
“the certificate from all proof as to the authenticity of the signature and the seal it bears. In actual fact, since the certificates have to be publicly numbered and registered, forgeries will have become so difficult that the certified document will be as reliable as to its origin as documents [formerly] legalized. Moreover, this public numbering and registering constitutes the very essence of the protection afforded by the certificate to the person presented with the document since proof to the contrary could be obtained simply by consulting a register.”8
Which Documents are Covered by the Apostille Convention?
Article 1 provides that the Convention “shall apply to public documents which have been executed in the territory of one contracting State and which have to be produced in the territory of another contracting State.”9 The Convention places “public documents” into four categories:
- 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 (“huissier de justice”);
- 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.
The Convention specifically does not apply to:
- Documents executed by diplomatic or consular agents;
- Administrative documents dealing directly with commercial or customs operations [like certificates of origin or import or export licenses].
Drawbacks of the Convention
Other than the requirement that the Apostille be at least nine centimeters square and contain the information mentioned above, the form of the Apostille is not mandated and many different versions emanate from state to state, country to country.
Further, the Convention does not address any translation requirement, offering only that the “Certificate may be drawn up in the official language of the authority which issues it. The standard terms appearing therein may be in a second language also.”10
Drafters of the Convention have generally let the mechanics of its practice fall to each country.
For example, the Apostille Convention makes no provision for the length of time issuing authorities must retain apostille registrations. There is no time during which an apostille must be issued once it is received by the issuing authority. There are no provisions for enforcement.
Even considering the above drawbacks of the Legalisation Convention, its benefits far outweigh its burdens and have greatly facilitated the transnational use of public documents. As proof of this, more than 100 States have become parties to the Convention.
1 Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, T.I.A.S. 10072, 527 U.N.T.S. 189, 33 U.S.T. 883, 20 I.L.M. 1405 [hereinafter Legalisation Convention or Apostille Convention].
2 Stewart Baker & Theodore Barassi, International Notarial Practitioner, Int’l L. News, Fall 1995 at 4.
3 Current Development: The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, 76 A.J.I.L. 182, 183 (1982).
4 The Convention also provides for legalization of unsigned public documents, art. 1, Apostille Convention.
5 Yvon Loussouarn, Explanatory Report on the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, offprint from the Acts and Documents of the Ninth Session (1960) of the Hague Conference on Private International Law, tome II, Legalisation.
6 Keith D. Sherry, Comment: Old Treaties Never Die, They Just Lose Their Teeth: Authentication Needs of a Global Community Demand Retirement of the Hague Public Documents Convention, 31 J. Marshall L. Rev. 1045, Spring 1998, at 1058.
7 Legalisation Convention, supra, art. 7, T.I.A.S. 10072.
8 Stewart Baker & Theodore Barassi, International Notarial Practitioner, Int’l L. News, Fall 1995 at 3.
9 Legalisation Convention, supra, art. 1, T.I.A.S. 10072.
10 Id. at 6.