On 8 March 2023 the Chinese ambassador to the Netherlands submitted China’s instrument of accession to the Hague Convention of 5 October 1961 Abolishing the Requirement of legalization for Foreign Public Documents (Apostille Convention). The Apostille Convention will come into force in China on 7 November 2023. The accession of China to the Apostille Convention changes the need for legalization of official documents in an apostille issued by the appointed authority in the State of origin. Such apostille is then recognized in the State of destination (China and vice versa).
What does it do?
The Apostille Convention greatly simplifies the authentication on public documents to be used abroad. It abolishes the traditional legalization process, which often takes a long time and is quite costly. It replaces it with a single formality, an authentication certificate issued by the appointed authority in the State where the public document was executed. Such certificate is called an Apostille.
China’s reasons to join the Apostille Convention
China’s Ministry of Foreign Affairs has commented on the reasons why China has decided to join the Apostille Convention. It stated that the Apostille Convention makes it simpler to use public documents abroad and it would facilitate international trade and people to people exchange, by significantly reducing time and cost. The time required to complete procedures will be slashed by 90 percent.
It means that Chinese citizens overseas can have their academic degrees, driver’s license health certificate etc., easily recognized in another State part of the Apostille Convention. Also, it will help the foreign business environment in China. Foreign companies investing or exporting into China will no longer need to seek consular legalization for commercial documents.
Why was it submitted by the Chinese Ambassador to the Netherlands?
Many people find it surprising that it was the Chinese ambassador in the Netherlands that submitted China’s accession to the Apostille Convention, and ask why it was not done in a different way as it is an international Convention. The reason for this is quite simple. Article 12.1 of the Apostille Convention states that the acceding State must deposit its instrument of Accession with the Ministry of Foreign Affairs of the Netherlands the place where the international treaty was in fact signed in 1961.
How foreign companies can benefit in China
In theory the Apostille Convention will make it much easier for foreign business to do business in and with China. After all, from setting up a company, to doing litigation in China, for all of these things notarized and legalized documents from the home State to China are needed. The Apostille Convention could make this costly and time-consuming process easier with the apostille as a new way of legalization.
However, this all depends upon what China considers public documents under internal law. Only those documents fall under the apostille convention. Therefore, it will be interesting to see what China has understood under public documents under internal law.
From a litigation point of view, it will be crucial that PoA, legal representative statements and company incorporation certificate fall under the category of public documents under internal law. This will help foreign business tremendously.
What is next?
Now the contracting States will be informed of the accession, and there will be a 6-month objection period for contracting States. However, if a State objects, it does not mean that China will not be part of the Apostille Convention. It only means that the Convention will not be applicable between the State that objects and China. The Chinese Ministry of Foreign Affairs has stated that the Apostille Convention will come into force on 7 November 2023.
ARTICLE FROM: HFG Law & Intellectual Property