The Chinese Government has officially deposited with the “Hague Conference on Private International Law” the instruments of accession to the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, also known as the Apostille Convention abolishing the requirement of legalization for Foreign Public Documents.

The Apostille Convention will enter into force for the Peoples Republic of China (“PRC”) on 7 November 2023. The Apostille Convention has been in force for the Hong Kong and Macao Special Administrative Regions (“SAR)” for quite some time, when the SARs still British and Portuguese territories.

This makes the PRC the 125th country in the world to introduce the document apostille procedure. China has been a member of the Hague Conference since 1987, but has long failed to ratify the Apostille Convention and is the largest country in the world without a simplified document legalization procedure.

Simplification

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 (Apostille) issued by the appointed authority in the State where the public document was executed. It will facilitate international trade, by significantly reducing time and cost. The time required to complete procedures will be slashed substantially.

Benefits

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 currently needed.

The Apostille Convention applies only to public documents and according to Art. 1 of the Apostille Convention the following are deemed to be public documents:

a) documents emanating from an authority or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process-server ("huissier de justice"); b) administrative documents;

c) notarial acts;

d) official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures.

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.

Next steps

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. We do not expect that Germany and /or major European trading partners of China will object.