Hague Convention of 5 October 1961 Abolishing
the Requirement of Legalisation for Foreign Public Documents
OUTLINE
HAGUE APOSTILLE CONVENTION
Purpose
of the Convention
The
Apostille Convention facilitates the circulation of public documents
executed in one State party to the Convention and to be produced in
another State party to the Convention.1 It does so by replacing the
cumbersome and often costly formalities of a full legalisation process
(chain certification) with the mere issuance of an Apostille (also called
Apostille Certificate or Certificate). The Convention has also proven
to be very useful also for States that do not require foreign public
documents to be legalised or that do not know the concept of legalisation
in their domestic law: the citizens in these States enjoy the benefits
of the Convention whenever they intend to produce a domestic public
document in another State party which, for its part, requires authentication
of the document concerned.
Public documents
The Convention applies only to public documents. These are documents
emanating from an authority or official connected with a court or tribunal
of the State (including documents issued by an administrative, constitutional
or ecclesiastical court or tribunal, a public prosecutor, a clerk or
a process-server); administrative documents; notarial acts; and 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 main examples
of public documents for which Apostilles are issued in practice include
birth, marriage and death certificates; extracts from commercial registers
and other registers; patents; court rulings; notarial acts and notarial
attestations of signatures; academic diplomas issued by public institutions;2
etc. Apostilles may also be issued for a certified copy of a public
document. On the other hand, the Convention neither applies to documents
executed by diplomatic or consular agents nor to administrative documents
dealing directly with commercial or customs operations (e.g., certificates
of origin or import or export licenses).
Who may issue an Apostille and how to assess
the origin of an Apostille?
Apostilles may only be issued by a Competent Authority designated by
the State from which the public document emanates (for more information,
including the list of Competent Authorities designated by the Contracting
States, contact details of Competent Authorities and other practical
information such as the price for an Apostille, see the “Apostille
Section” on the HCCH website). The Permanent Bureau (Secretariat)
of the Hague Conference on Private International Law does not issue
Apostilles. The Apostille is placed by the Competent Authority on the
public document itself or on an allonge. The Apostille must comply with
themodel annexed to the Convention. In addition, each Competent Authority
is required to keep a Register in which it records the Apostilles it
has issued. The Registers, which may be accessed by any interested person,
are an essential tool to combat fraud and assess the origin of an Apostille
in case of doubt.
The effects of an Apostille
The only effect of an Apostille is to 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
the document bears. The Apostille does not relate to the content of
the underlying document itself (i.e., the apostillised document).
Monitoring of the Convention
The Apostille Convention's practical operation was last reviewed by
a Special Commission in 2003. The Special Commission confirmed the “very
wide use and effectiveness” of the Convention, as well as the
“absence of any major practical obstacle”. Nonetheless,
the Special Commission “emphasised that the use of information
technology (IT) could have a positive impact on the operation of the
Convention, in particular through lowering costs and increasing the
efficiency of the creation and registration of Apostilles.” Most
importantly, the Special Commission “noted that the spirit and
letter” of the Convention “do not constitute an obstacle
to the usage of modern technology and that [its] application and operation
can be further improved by relying on such technologies.” These
findings were confirmed by the First and Second International Fora on
e-Notarization and e-Apostilles held in 2005 and 2006 respectively.
The e-APP
In April 2006, the HCCH and the NNA officially launched the electronic
Apostille Pilot Program (e-APP). Under the e-APP, the HCCH and the NNA
are, together with any interested State, (or any of its internal jurisdictions),
developing, promoting and assisting in the implementation of low-cost,
operational and secure software for (i) the issuance and use of electronic
Apostilles (e-Apostilles) and (ii) the creation and operation of electronic
Registers of Apostilles (e-Registers).
The e-APP modernises the operation of the Apostille Convention by extending
it into the electronic medium without changing its nature and without
having to change its content; the e-APP makes the overall operation
of the Convention much more effective, dramatically enhances security
and offers a very powerful and effective deterrent to fraud. Most importantly,
all the material developed under the e-APP is offered to any Competent
Authority at not cost.3 For more information on the e-APP, go to <
www.e-APP.info >.
A Practical Handbook on the operation of the Convention
A Practical Handbook, currently being prepared by the Permanent Bureau,
will further assist the sound and effective operation of the Apostille
Convention.
1
The Apostille Convention only applies as between States parties.
For a comprehensive and updated list of Contracting States, see
the “Status table of the Apostille Convention”, which
is available on the “Apostille Section” of the HCCH
Web site at www.hcch.net. Among
all Hague Conventions, the Apostille Convention has attracted the
highest number of ratifications and accessions. The Convention is
applied millions of times a year.
2 Diplomas issued by private institutions may not be apostillised
directly; a ‘private’ diploma may, however, bear an
official certificate issued by a notary, Solicitor, Agency or any
other person or authority competent under the law of the State of
origin of the diploma to authenticate the signature on the diploma.
This official certificate is a public document under the Convention
and thus may be apostillised. In such a case the Apostille does
not relate to the diploma itself; instead it certifies the authenticity
of the certificate on the diploma.
3 The two main components of the e-APP consist of 1) comprehensive
explanatory material as to how Competent Authorities may use PDF
technology and digital certificates to issue e-Apostilles, and how
third parties can use such e-Apostilles and, 2) open-source software
for the creation and operation of e-Registers by Competent Authorities,
and an explanation as to how third parties can use such e-Registers.
An e-Register under the e-APP allows for easy online queries by
third parties to verify the origin of an Apostille without Competent
Authorities having to answer these queries individually by phone,
email or otherwise. This being said, an e-Register as suggested
under the e-APP does not allow for “fishing expeditions”
– persons do not have unlimited access to all the information
stored in an e-Register but can only verify whether or not an Apostille
they have been presented with has really been issued by the Competent
Authority whose name appears on the Apostille. To access the relevant
e-Register, a person must provide the date and the number of the
Apostille he or she has been presented with.
