Hague Apostille Convention Enters into Force in China
On November 7, 2023, the Convention Abolishing the Requirement of Legalization for Foreign Public Documents (hereinafter referred to as the "Hague Apostille Convention" or the "Convention") officially came into effect in China. The Hague Apostille Convention currently has more than 120 contracting members, accounting for about three-fifths of the total number of countries and regions in the world. It is an important international treaty with the widest applicable scope and the largest number of contracting parties under the framework of the Hague Conference on Private International Law (HCCH). The purpose of the Convention is to simplify the procedures for the transnational circulation of public documents and replace traditional consular legalization with a more convenient certification method.
CPA has summarized as follows the specific changes in relevant litigation practices after the Convention's coming into effect in China.
1. The Convention replaces consular legalization with Apostille, which will simplify the process for foreign parties to handle entrustment documents for Chinese litigation.
After the Convention came into effect in China, consular legalization was canceled for public documents transferred between China and other contracting states* of the Convention, and instead, the effectiveness of the public documents will be certified in the form of an additional certificate ("Apostille") issued by a competent authority of the country in which the document was issued. This means that for a foreign party to a lawsuit in China whose country of origin is also a contracting party to the Convention, when preparing for an entrustment document for the purpose of litigation in China, such as power of attorney, certificate of identity of legal representative, or certificate of good standing/commercial register, the document will just need to be notarized in its country accompanied by an Apostille issued by a competent authority in the country in which the document was issued, and there is no need to go through the consular legalization procedures at the Chinese embassy or consulate in that country. However, in the case of the foreign party coming from a non-contracting state or where the Convention has not taken effect between its country and China, the entrustment document used by the party for the purpose of litigation in China still needs to go through consular legalization procedures at the Chinese embassy or consulate in the traditional way.
2. Except for consular legalization being replaced by Apostille, other procedures for proving authenticity and validity of documents have not undergone substantial changes.
Regardless of the former consular legalization or the Apostille under the Convention, its function is to certify the authenticity of the last seal and/or signature on the public document only, rather than to be responsible for the authenticity and legality of the content of the document itself. For a foreign party to a lawsuit in China, even if its country of origin is also a party to the Convention, it still needs to go through the formalities of notarization before applying for the Apostille when submitting a document such as power of attorney, certificate of identity of legal representative, or certificate of good standing/commercial register for use in litigation in China. In addition, if the litigant is a company, institution or social organization, the Chinese court will usually require that the person signing the power of attorney for use in the litigation shall have the authority to represent the litigant. This has not changed by the entry into force of the Convention.
3. No adjustments have been issued by Chinese court since the entry into force of the Convention as regards pre-registration system and pre-registration period for intellectual property administrative litigation.
Prior to the entry into force of the Convention, pre-registration of litigation is available for application by foreign parties to an intellectual property administrative action in China, i.e., within the limitation of action stipulated by law, a foreign party may pre-register with the court by submitting a scanned copy or a photocopy of a signed power of attorney, upon which the court will give the party a three-month period to have the relevant documents notarized and legalized by the Chinese embassy or consulate in its country; if the party submits qualified notarized and legalized documents within the three-month time limit, the lawsuit will be formally accepted by the court. Although it is foreseeable that the time required for transnational circulation of documents will be significantly reduced following the Convention's entry into force in China, there have been no adjustments issued by Chinese court to date to the said pre-registration system and the time limit of three months. Meanwhile, after the pre-registration, the parties concerned can still apply for Apostille in their own countries and submit the documents to the court accordingly within a three-month period.
Considering that the Convention has just recently been implemented in China, it cannot be ruled out that Chinese court will adopt further regulations in future or adjust relevant systems based on the specific circumstances of the implementation of the Convention.
*Note: As of now, the Convention does not take effect between China and India, Canada and Rwanda; nor is it applicable between China and those members of the Convention that China does not recognize as sovereign states.
