The Convention on the Legalisation of Foreign Public Documents brings changes to China’s Civil Procedure
Legal Development 20 November 2023 20 November 2023
The Convention, also known as the Apostille Convention, is an international treaty with the widest scope of application and a large number of contracting parties under the framework of the Hague Conference on Private International Law, an intergovernmental organisation. It aims to simplify the process of cross-border circulation of public documents.
Introduction to the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents （ “Convention” ）
In recent years, the membership of the Convention has grown rapidly, and there are currently 125 contracting parties, accounting for about three-fifths of the total number of countries and regions in the world, including the main economies, e.g., the European Union, the United States, Japan, South Korea, Australia etc.
Under the Convention, document certification in the form of an Apostille is sufficient for the contracting states. Documents do not need to be certified by a consular agent and are recognised in the country for which they are intended.
China's accession to the Convention
On 8 March 2023, China acceded to the Convention, which took effect on 7 November 2023, following which it began issuing Apostilles. Public documents affixed with the Apostille issued by their countries of origin can be used in participating states to the Convention. Consular authentication is no longer required.
For the states which are not party to the Convention, the normal certification process without the Apostille, but by means of authentication by a consular or diplomatic agent, is required.
The Chinese Ministry of Foreign Affairs of China (“MFA”) is the competent authority responsible for issuing Apostilles for public documents issued in China. For further information on the specific procedure and the requirements for applying for an Apostille, please log on to the China Consular Service Network (http://cs.mfa.gov.cn) or visit the websites of the relevant local foreign affairs offices.
Effect of the Convention on the legalisation of litigation documents in China
Before the Convention took effect in China, if a non-Chinese claimant wished to start legal proceedings in China, the relevant litigation documents, including the Power of Attorney ("POA”), the Certificate of Identity of the Legal Representative ("COI") and the Certificate of Registration (and some other documents, e.g. the Statement of Claim, depending on the requirements of specific courts) usually needed to be notarised abroad by a local notary public and legalised by the Chinese Embassy/Consulate-General in that country.
Following China's accession to the Convention, our understanding is that the Apostille issued by the local competent authority replaces the need for legalisation which was originally carried out by the Chinese Embassy/Consulate-General.
We note that various Chinese embassies (albeit not all at the moment) have issued notices on the suspension of consular legalisation on their official website, including the Chinese Embassy in Japan, the United States, Australia, Singapore, etc.
In summary, litigation documents from a contracting state to the Convention (POA, COI, Certificate of Registration, etc.) will now only need to be notarised and apostilled, and there is no mandatory requirement for the legalisation by the Embassy/Consulate-General. However, we should highlight that detailed regulation and judicial interpretation on the implementation of the Convention have not yet been issued and we shall keep monitoring the situation.