we recommend:
Apostille is a french word which means a certification. It iscommonly used in English to refer to the legalization of a document forinternational use under the terms of the 1961 Hague ConventionAbolishing the Requirement of Legalization for Foreign PublicDocuments. Documents which have been notarized by a notary public, andcertain other documents, and then certified with a conformant apostilleare accepted for legal use in all the nations that have signed theHague Convention.
For example, when the will of anAustralian decedent who had assets in Hong Kong is probated inAustralia, if it then has to be presented in Hong Kong in order totransfer estate assets in Hong Kong to Australia, an Australiangovernment apostille must be affixed to the following documents afternotarization by an Australian Notary Public:
1. Death certificate
2. A copy of the will
This is also true for the United Kingdom, which like Hong Kong is a signatory to the 1961 Hague Convention.
Obtaining an apostille can be a highly complex process. Getting abirth certificate with apostille in New York, for example, requiresapplying to three separate offices in succession.
Incountries which are not signatories to the 1961 convention and do notrecognize the apostille, a foreign public document must be legalized bya consular officer in the country which issued the document. In lieu ofan apostille, documents in the U.S. usually will receive a Certificateof Authentication.
The Hague Convention
The Hague Convention Abolishing the Requirement ofLegalisation for Foreign Public Documents is one of a series ofconventions of the Hague Conference on Private International Law. Itwas signed by the original signatories on October 5, 1961. It specifiesthe modalities through which a document issued in one of the signatorycountries can be certified for legal purposes in all the othersignatory states. Such a certification is called an apostille. It is aninternational certification comparable to a notarisation and is oftenadded to documents that have been in some manner signed by a Notary,lawyer or other public official such as the clerk of a court of recordin their official capacity.
States which have notsigned the Convention must specify how foreign legal documents can becertified for its use. Sometimes two countries will have a specialtreaty concerning the recognition of each others documents, but this isnot common. When the country issuing or receiving the document does notrecognise an apostille, usually the document will have to be taken tothe consulate of the foreign country you need to certify it. It mayneed to be certified by the highest government official in the countrywhere it originated, such as the Secretary of State or Minister ofForeign Affairs, before being accepted by the consular officer of theforeign country, this process is known as chain authentication as anunbroken chain of government officials each certifies the signature(and seal in some cases) of the prior official in the first country andthe consular officer then certifies that the document should berecognized as authentic in the country of destination. Usually thatconsular officer's signature can be authenticated in the country ofdestination as well.
In the United States, apostillesare usually affixed by the secretary of state in each US state orterritory. It may be necessary for an intermediary official to affix acertification that the original signatory (notary or clerk) wasauthorized to sign the public document, leading to a complex processfor obtaining the apostille.
How does the treaty work?
The general framework for the convention is as follows.
1. Countries which sign the convention agree to follow aset of rules regarding jurisdiction for cross-border litigation. Nearlyall civil and commercial litigation is included.
2. So long as these jurisdiction rules are followed, every countryagrees to enforce nearly all of the member country judgments andinjunctive orders, subject only to a narrow exception for judgmentsthat are "manifestly incompatible with public policy," or to specifictreaty exceptions, such as the one for certain antitrust claims.
3. A judgment in one country is enforced in all Hagueconvention member countries, even if the country has no connection to aparticular dispute.
4. There are no requirementsto harmonize national laws on any topic, except for jurisdiction rules,and save the narrow Article 28(f) public policy exception, there are norestrictions on the types of national laws that to be enforced.
5. All "business to business" choice of forum contractsare enforced under the convention. This is true even for non-negotiated mass-market contracts. Under the most recent drafts of theconvention, many consumer transactions, such as the purchase of a workrelated airline ticket from a web site, the sale of software to aschool or the sale of a book to a library, is defined as a business tobusiness transaction, which means that vendors of goods or services orpublishers can eliminate the right to sue or be sued in the countrywhere a person lives, and often engage in extensive forum shopping forthe rules most favorable to the seller or publisher.
Background, establishment and status
The First Session of the Hague Conference on privateinternational law was convened in 1893 by the Netherlands Government onthe initiative of T.M.C. Asser (Nobel Peace Prize 1911). Prior to theSecond World War, six Sessions were held (1893, 1894, 1900, 1904, 1925and 1928). The Seventh Session in 1951 marked the beginning of a newera with the preparation of a Statute which made the Conference apermanent intergovernmental organisation. The Statute entered intoforce on 15 July 1955. Since 1956, regular Plenary Sessions are heldevery four years, the Twenty-First of which met in 2007.
Methods of operation
The principal method used to achieve the purpose of theConference consists in the negotiation and drafting of multilateraltreaties or Conventions in the different fields of privateinternational law (international judicial and administrativeco-operation; conflict of laws for contracts, torts, maintenanceobligations, status and protection of children, relations betweenspouses, wills and estates or trusts; recognition of companies;jurisdiction and enforcement of foreign judgments). After preparatoryresearch has been done by the secretariat, preliminary drafts of theConventions are drawn up by the Special Commissions made up ofgovernmental experts. The drafts are then discussed and adopted at aPlenary Session of the Hague Conference, which is a diplomaticconference.
The secretariat of the Hague Conferencemaintains close contact with the governments of its Member Statesthrough National Organs designated by each government. For the purposeof monitoring the operation of certain treaties involving judicial oradministrative co-operation, the Permanent Bureau enters into directcontact from time to time with the Central Authorities designated bythe States Parties to those treaties. In order to promote internationalco-operation and to ensure co-ordination of work undertaken bydifferent bodies, the Hague Conference also maintains continuingcontact with a number of international organisations, including theUnited Nations - particularly its Commission on International Trade Law(UNCITRAL), UNICEF, the Committee on the Rights of the Child (CRC) andthe High Commissioner for Refugees (UNHCR) - the Council of Europe, theEuropean Union, the Organisation of American States, the CommonwealthSecretariat, the Asian-African Legal Consultative Organisation (AALCO),the International Institute for the Unification of Private Law(Unidroit) and others. Certain non-governmental organisations, such asInternational Social Service, the International Society of Family Law,the International Chamber of Commerce, the International BarAssociation, the Union internationale des Avocats, the InternationalUnion of Latin Notaries, and the International Union of SheriffOfficers and Judicial Officers, among others, maintain close contactwith the Permanent Bureau and regularly send observers to attend HagueConference meetings. For the development of new Conventions, as well asfor the monitoring of the practical operation of existing Conventions,the Permanent Bureau often appeals to other international organisationsthat have specific knowledge of the subject matter involved.
The other Hague Conventions
Between 1893 and 1904, the Conference adopted 7 internationalConventions, which have all been subsequently replaced by more moderninstruments.
Between 1951 and 2008, the Conferenceadopted 38 international Conventions, the practical operation of manyof which is regularly reviewed by Special Commissions. Even when theyare not ratified, the Conventions have an influence upon legal systems,in both Member and non-Member States. They also form a source ofinspiration for efforts to unify private international law at theregional level, for example within the Organisation of American Statesor the European Union.
The most widely ratified Conventions deal with:
o The abolition of legalisation
o Service of process
o Taking of evidence abroad
o Access to justice
o International child abduction
o Intercountry adoption
o Conflicts of laws relating to the form of testamentary dispositions
o Maintenance obligations
o Recognition of divorces
The most recent Conventions are the Convention on the LawApplicable to Certain Rights in respect of Securities held with anIntermediary (2006), the Convention on Choice of Court Agreements(2005), the Convention on the International Recovery of Child Supportand Other Forms of Family Maintenance (2007), and the Protocol on theLaw Applicable to Maintenance Obligations (2007).
Questions of private international law raised by the informationsociety, including electronic commerce are also on the agenda, togetherwith, without priority, the following topics: conflict ofjurisdictions, applicable law and international judicial andadministrative co-operation in respect of civil liability forenvironmental damage; jurisdiction and recognition and enforcement ofdecisions in matters of succession upon death and questions of privateinternational law relating to unmarried couples; the law applicable tounfair competition as well as assessment and analysis of transnationallegal issues relating to indirectly held securities and securityinterests, taking into account in particular the work undertaken byother international organisations.
Furthermore, thePermanent Bureau has undertaken feasibility studies on the treatment offoreign law, cross-border mediation in family matters, the choice oflaw in international contracts. The Permanent Bureau also continues itsexploration of the possibility to apply certain techniques it hasdeveloped in the area of international co-operation to aspects ofinternational migration.
Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Full text)
CONVENTION ABOLISHING THE REQUIREMENT OF LEGALIZATION
FOR FOREIGN PUBLIC DOCUMENTS
(Entered into force 24 January 1965)
The States signatory to the present Convention,
Desiring to abolish the requirement of diplomatic or consular legalisation for foreign public documents,
Have resolved to conclude a Convention to this effect and have agreed upon the following provisions:
Article 1
The present Convention shall apply to public documents which havebeen executed in the territory of one Contracting State and which haveto be produced in the territory of another Contracting State.
For the purposes of the present Convention, the following are deemed to be public documents:
a) documents emanating from an authority or an officialconnected with the courts or tribunals of the State, including thoseemanating from a public prosecutor, a clerk of a court or aprocess-server ("huissier de justice");
b) administrative documents;
c) notarial acts;
d) official certificates which are placed on documents signedby persons in their private capacity, such as official certificatesrecording the registration of a document or the fact that it was inexistence on a certain date and official and notarial authenticationsof signatures.
However, the present Convention shall not apply:
a) to documents executed by diplomatic or consular agents;
b) to administrative documents dealing directly with commercial or customs operations.
Article 2
Each Contracting State shall exempt from legalisation documents towhich the present Convention applies and which have to be produced inits territory. For the purposes of the present Convention, legalisationmeans only the formality by which the diplomatic or consular agents ofthe country in which the document has to be produced certify theauthenticity of the signature, the capacity in which the person signingthe document has acted and, where appropriate, the identity of the sealor stamp which it bears.
Article 3
The only formality that may be required in order to certify theauthenticity of the signature, the capacity in which the person signingthe document has acted and, where appropriate, the identity of the sealor stamp which it bears, is the addition of the certificate describedin Article 4, issued by the competent authority of the State from whichthe document emanates.
However, the formality mentioned in the preceding paragraph cannotbe required when either the laws, regulations, or practice in force inthe State where the document is produced or an agreement between two ormore Contracting States have abolished or simplified it, or exempt thedocument itself from legalisation.
Article 4
The certificate referred to in the first paragraph of Article 3shall be placed on the document itself or on an "allonge", it shall bein the form of the model annexed to the present Convention.
It may, however, be drawn up in the official language of theauthority which issues it. The standard terms appearing therein may bein a second language also. The title "Apostille (Convention de La Hayedu 5 octobre 1961)" shall be in the French language.
Article 5
The certificate shall be issued at the request of the person who has signed the document or of any bearer.
When properly filled in, it will certify the authenticity of thesignature, the capacity in which the person signing the document hasacted and, where appropriate, the identity of the seal or stamp whichthe document bears.
The signature, seal and stamp on the certificate are exempt from all certification.
Article 6
Each Contracting State shall designate by reference to theirofficial function, the authorities who are competent to issue thecertificate referred to in the first paragraph of Article 3.
It shall give notice of such designation to the Ministry of ForeignAffairs of the Netherlands at the time it deposits its instrument ofratification or of accession or its declaration of extension. It shallalso give notice of any change in the designated authorities.
Article 7
Each of the authorities designated in accordance with Article 6shall keep a register or card index in which it shall record thecertificates issued, specifying:
a) the number and date of the certificate,
b) the name of the person signing the public document and thecapacity in which he has acted, or in the case of unsigned documents,the name of the authority which has affixed the seal or stamp.
At the request of any interested person, the authority which hasissued the certificate shall verify whether the particulars in thecertificate correspond with those in the register or card index.
Article 8
When a treaty, convention or agreement between two or moreContracting States contains provisions which subject the certificationof a signature, seal or stamp to certain formalities, the presentConvention will only override such provisions if those formalities aremore rigorous than the formality referred to in Articles 3 and 4.
Article 9
Each Contracting State shall take the necessary steps to prevent theperformance of legalisations by its diplomatic or consular agents incases where the present Convention provides for exemption.
Article 10
The present Convention shall be open for signature by the Statesrepresented at the Ninth Session of the Hague Conference on PrivateInternational Law and Iceland, Ireland, Liechtenstein and Turkey.
It shall be ratified, and the instruments of ratification shall bedeposited with the Ministry of Foreign Affairs of the Netherlands.
Article 11
The present Convention shall enter into force on the sixtieth dayafter the deposit of the third instrument of ratification referred toin the second paragraph of Article 10.
The Convention shall enter into force for each signatory State whichratifies subsequently on the sixtieth day after the deposit of itsinstrument of ratification.
Article 12
Any State not referred to in Article 10 may accede to the presentConvention after it has entered into force in accordance with the firstparagraph of Article 11. The instrument of accession shall be depositedwith the Ministry of Foreign Affairs of the Netherlands.
Such accession shall have effect only as regards the relationsbetween the acceding State and those Contracting States which have notraised an objection to its accession in the six months after thereceipt of the notification referred to in sub-paragraph d) of Article 15. Any such objection shall be notified to the Ministry of Foreign Affairs of the Netherlands.
The Convention shall enter into force as between the acceding Stateand the States which have raised no objection to its accession on thesixtieth day after the expiry of the period of six months mentioned inthe preceding paragraph.
Article 13
Any State may, at the time of signature, ratification or accession,declare that the present Convention shall extend to all the territoriesfor the international relations of which it is responsible, or to oneor more of them. Such a declaration shall take effect on the date ofentry into force of the Convention for the State concerned.
At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the Netherlands.
When the declaration of extension is made by a State which hassigned and ratified, the Convention shall enter into force for theterritories concerned in accordance with Article 11. When thedeclaration of extension is made by a State which has acceded, theConvention shall enter into force for the territories concerned inaccordance with Article 12.
Article 14
The present Convention shall remain in force for five years from thedate of its entry into force in accordance with the first paragraph ofArticle 11, even for States which have ratified it or acceded to itsubsequently.
If there has been no denunciation, the Convention shall be renewed tacitly every five years.
Any denunciation shall be notified to the Ministry of ForeignAffairs of the Netherlands at least six months before the end of thefive year period.
It may be limited to certain of the territories to which the Convention applies.
The denunciation will only have effect as regards the State whichhas notified it. The Convention shall remain in force for the otherContracting States.
Article 15
The Ministry of Foreign Affairs of the Netherlands shall give noticeto the States referred to in Article 10, and to the States which haveacceded in accordance with Article 12, of the following:
a) the notifications referred to in the second paragraph of Article 6;
b) the signatures and ratifications referred to in Article 10;
c) the date on which the present Convention enters into force in accordance with the first paragraph of Article 11;
d) the accessions and objections referred to in Article 12 and the date on which such accessions take effect;
e) the extensions referred to in Article 13 and the date on which they take effect;
f) the denunciations referred to in the third paragraph of Article 14.
In witness whereof the undersigned, being duly authorized thereto, have signed the present Convention.
Done at The Hague the 5th October 1961, in French and in English,the French text prevailing in case of divergence between the two texts,in a single copy which shall be deposited in the archives of theGovernment of the Netherlands, and of which a certified copy shall besent, through the diplomatic channel, to each of the States representedat the Ninth Session of the Hague Conference on Private InternationalLaw and also to Iceland, Ireland, Liechtenstein and Turkey.
Apostille (Convention of 5 October 1961
Abolishing the Requirement of Legalization Outline Hague Apostille Convention
for Foreign Public Documents - Full Text)
