Membership of the convention will make the authentication of documents easier

The Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention) came into force in China on 7^th November 2023, replacing the traditional two-step authentication process of diplomatic and consular legalisation with a one-step apostille certificate. Hawksford’s Sebastian Hoffmann argues that this change will benefit both businesses and individuals that need to use public documents issued by a foreign government in China, as well as those using Chinese documents abroad.

The objective of the Hague Apostille Convention is to simplify the process of authenticating public documents for use abroad. The convention was adopted by the Hague Conference on Private International Law in 1961 and has been ratified or acceded to by 125 countries and regions. These include the major trading partners of China and most members of the Belt and Road Initiative, the European Union (EU), the United Kingdom, the United States, Japan, South Korea, Australia and Russia.

The convention eliminates the need for consular authentication and streamlines the authentication process by providing a standardised certificate known as an ‘apostille’ that is recognised by all contracting states. The apostille certificate allows public documents issued in one contracting state to be certified for legal use in another contracting state, after being notarised by a competent authority designated by the issuing state.

The apostille is a form of authentication that verifies the origin, signature, seal and stamp of a document. While it does not verify the content of the document, the apostille has the same effect as the traditional consular authentication procedure among the contracting states.

What are the benefits?

China’s membership of the convention will undoubtedly save businesses and individuals time and money. According to China’s Ministry of Foreign Affairs (MFA), it is estimated that this will save more than Chinese yuan (CNY) 300 million annually in processing expenses. The time taken for processing and circulating documents between contracting states is expected to be reduced by an average of 90 per cent.

Previously, individuals had to go through a lengthy administrative process of legalising documents through multiple authorities. Foreign documents had to first be notarised and authenticated by local authorities, and then authenticated by the Chinese embassy or consulate in the country where the documents were issued. The process of obtaining a document for use overseas previously took approximately 20 working days, but can now be completed in just a few working days.

Chinese citizens can quickly and easily apply for various documents, such as marriage certificates and drivers’ licences. Similarly, foreign nationals can now use an apostilled document to support a range of administrative procedures, such as applying for visa and work permits, or to register a marriage.

China’s accession to the Convention is also likely to improve the country’s business environment, particularly for foreign direct investment (FDI). The MFA reports that around 70 per cent of the commercial documents required for making an investment into China or exporting from the country will be covered by the convention.

This means that businesses engaged in international trade can enjoy a smoother process for using invoices, contracts and other documents with the apostille certificate. Foreign companies can now more easily apply for business licences in China as new documents required for company registration, such as business registration certificates and articles of association, only require an apostille certificate.

Which documents qualify?

Before requesting an apostille, it is important to understand which documents fall under its scope. The Apostille Convention only applies to certain public documents, including:

• court documents;
• administrative documents, such as birth, marriage and death certificates;
• notarial acts; and
• certificates that are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document.

The determination of whether the document is considered public is defined by the law of the state in which it was issued. The need for an apostille certificate depends on whether the document requires traditional consular legalisation in its country of origin before the convention takes effect. The convention typically excludes administrative documents related to commercial or customs activities, as well as diplomatic or consular documents.

Key considerations and good practice

For businesses planning to take advantage of the new, simplified procedures for the authentication of documents, there are a few things to bear in mind.

First, it is highly recommended that companies and investors understand China’s laws and regulations governing notarisation and apostille certificates for document authentication. Applicants should familiarise themselves with the requirements and procedures for obtaining an apostille, such as the criteria for what constitutes a public document in China. Companies can seek advice from international business law specialists and make use of government services.

Second, when preparing documents and materials, applicants should pay close attention to additional document verification requirements. Chinese authorities typically require a certified Chinese translation of the original document. Applicants should also keep a copy of original documents and materials for audit and verification purposes.

Finally, it is also recommended to plan a reasonable timeline, budget in advance and ensure that all submissions are completed on time. Efficient processing can help companies and individuals receive the apostille within the expected timeframe.

Conclusion

China’s accession to the Apostille Convention is expected to increase FDI by streamlining document authentication for investors and augmenting predictability and transparency. The Chinese market is now more attractive to investors due to the lowering of administrative hurdles, creating a favourable atmosphere for international commercial operations. China’s accession to the convention demonstrates its commitment to legislative harmonisation and is in line with international standards.

About Hawksford

Hawksford is an international provider of corporate, private client and fund services. It is trusted to deliver efficient administration services to private and publicly listed companies, multinationals and SMEs, entrepreneurs and HNW individuals, global banks and intermediaries.

About the author

Sebastian Hoffmann works as an associate at Hawksford as part of the sales and business development team in China, in charge of the Hawksford German Desk. He graduated in communication and cultural science and attended universities in Germany, Poland and China.