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The Convention of Abolishing the Requirement of Legalization for Foreign Public Documents Came into Effect and Has Been Implemented in China on November 7, 2023
The Convention of Abolishing the Requirement of Legalization for Foreign Public Documents Came into Effect and Has Been Implemented in China on November 7, 2023
The Convention of Abolishing the Requirement of Legalization for Foreign Public Documents (hereinafter referred to as “Convention”) was signed on October 5, 1961. As of October 23, 2023, there are around 125 member countries or regions that have ratified the Convention (see the list of contracting parties of the Convention on the website of the Ministry of Foreign Affairs of the People’s Republic of China (https://www.fmprc.gov.cn/web/wjbxw_new/202310/t20231023_11165858.shtml).
According to Article 1 of the Convention, 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. Article 1 of the Convention further states that, for the purposes of the Convention, the following are deemed as the public documents:
(1) documents emanating from an authority or an official connected with the courts ortribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process-server;
(2) administrative documents;
(3) notarial documents; and
(4) official certificates which are placed on documents signed by persons in theirprivate capacity, such as official certificates recording the registration of a documentor the fact that it was in existence on a certain date and official and notarialauthentications of signatures.
According to Article 2 of the Convention, each Contracting State shall exempt from legalization documents to which the present Convention applies and which have to be produced in its territory. Article 2 further states that, for the purposes of the Convention, “legalization” means only 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 personsigning the document has acted and, where appropriate, the identity of the seal or stamp which it bears.
As stated in Article 3 of the Convention, the only formality that may be required in order 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 it bears, is the addition of the certificate described in Article 4, issued by the competent authority of the contracting state from which the document emanates. However, according to Article 3.2 of the Convention, the formality mentioned above cannot be required when either the laws, regulations, or practice in force in the State where the document is produced or an agreement between two or more contracting states have abolished or simplified it, or exempt the document itself from legalization.
According to the various public reports, the People’s Republic of China (“China”) deposited the "Abolishing the Requirements of Legalization for Foreign Public Documents" Convention (“Convention” - also known as the Hague Convention or Apostille) on 8 March 2023, and the Convention entered into force and became effective in China on November 7, 2023. Through the implementation of the Convention in China, the time and economic costs of cross-border preparation and circulation of relevant public documents can be simplified, and it can optimize the business environment and facilitate international trade, economic and personnel exchanges.
In response to the implementation of the "Convention” in China, the Consular Network of China and the Chinese Embassy in the United States respectively published the following announcements on 23 October 2023 and 24 October 2023:
1. The Convention of Abolishing the Requirement of Legalization for Foreign Public Documents Came into Effect in China on November 7, 2023(http://cs.mfa.gov.cn/wgrlh/lsrz/lsrzjjs/)
Before the entry into force of the Convention on November 7, 2023, when foreign entities are involved in patent-related litigations or specific patent-related procedures in China, if they need to submit relevant documents formed outside the territory to the courts or relevant administrative agencies in China (such as proof of the legal status of the parties, company-related documents, etc.) because Chinese courts or relevant administrative agencies cannot directly confirm the authenticity of such foreign documents, the parties need to confirm the authenticity of such foreign documents through notarization and certification/legalization procedures. Before the entry into force of the Convention in China on November 7, 2023, the aforementioned notarization and legalization procedures normally include the following: (1) notarization of the documents by the notary authority in the country where the foreign entity is located; (2) certification of the validity of the notarization or the qualification of the notary by the local governments (usually the local foreign affairs department); and (3) re-certification/legalization of the local governments or the identity of the handling officers by the Chinese consulates in the concerned foreign countries.
After the implementation of the Convention in China on November 7, 2023, when public documents from other contracting states need to be used in China, the procedure of obtaining an Apostille certificate from the country of origin can be used instead of the previous "consular certification/legalization by the embassy or consulate of the country and the Chinese embassy or consulate in the local area." In other words, it is no longer needed for the previous "notarization + double certifications" process, and a relevant foreign public document only need to be notarized and accompanied by an Apostille certificate; the previous "consular certification/legalization by the embassy or consulate of the country and the Chinese embassy or consulate in the local country" is no longer required.
The implementation of the Convention is mutually applicable among all the contracting states. A public document from China that needs to be produced in another contracting state can also be replaced by obtaining an Apostille certificate instead of the previously required consular certification/legalization by the embassy or consulate. For specific procedures and requirements for obtaining an Apostille certificate in China, please refer to the information published on the Consular Service Website of China:Procedures for Applying for Apostille (http://cs.mfa.gov.cn/zggmcg/fjzms/bzxz/).
After the Convention came into effect in China on November 7, 2023, Chinese courts and the China National Intellectual Property Administration (“CNIPA”) also cooperate to reduce or exempt the previous requirements for consular certification/legalization by embassies for specific foreign public documents when handling patent-related litigations or other patent-related cases. For cases where Chinese courts or the CNIPA have already requested "documents to be certified/legalized by consular offices" before November 7, 2023 (the date on which the Convention came into effect in China), whether those certification/legalization requirements can be exempted retroactively still needs to be observed.
The above information is provided for the reference of clients and friends. If you have any questions or need any assistance, please feel free to contact us at any time.