China Joins the Hague Apostille Convention: A Major Development in Cross-Border Legal Cases

Introduction

Cross-border legal cases often require the legalization of public documents, a process that can be cumbersome and time-consuming. This has been a significant challenge for many involved in such cases. However, with China’s recent accession to the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (commonly referred to as the Hague Apostille Convention), and its upcoming implementation, there is widespread anticipation that these procedures will be greatly simplified. On October 23, 2023, China’s Ministry of Foreign Affairs announced the effective date of the convention in China and provided details on the competent authorities for issuing the apostille, as well as guidance on the specific procedures and requirements.

According to the announcement, starting November 7, 2023, public documents sent from China to other contracting states will only need to be accompanied by an apostille, eliminating the need for consular legalization by Chinese embassies or consulates in the receiving country. Similarly, public documents from other contracting states intended for use in mainland China will only require an apostille from the issuing country, without the need for further legalization by Chinese consular offices.

Impact on Cross-Border Legal Cases

For foreign parties involved in litigation or other legal proceedings in China, the previous process of notarizing and legalizing documents in their home country often took several months, with additional delays during the pandemic. Starting November 7, 2023, these procedures will be significantly streamlined. In the context of intellectual property cases, the Supreme People’s Court of China and the Beijing Intellectual Property Court, which handles first-instance administrative litigation on exclusive jurisdiction, have not yet issued formal guidelines on whether the notarization and legalization requirements for authorization documents will change post-November 7. However, it is expected that the courts will comply with the Hague Convention’s requirement to abolish consular legalization, and official guidelines should be issued soon. Moreover, many Chinese embassies in the convention’s contracting states have already announced that they will cease processing consular legalizations from November 7 onward, making continued consular legalization practically impossible.

Based on our analysis and the information gathered, after China officially joins the convention on November 7, 2023, courts’ focus in reviewing litigation authorization documents is expected to be on the following key points:

Document Origin: Whether the document originates from a contracting state. Documents exempt from Chinese consular legalization are only applicable to transactions between contracting states. Both the document’s issuing and receiving countries must be contracting states. For convenience, here is the list of contracting states: Chinese version and English version.

Applicability to Non-Contracting States: The convention does not apply to countries that have raised objections to China’s accession, such as India. Therefore, the convention will not be applicable to public documents between China and India.
Type of Document: The convention applies only to public documents, meaning documents related to official government affairs. Documents executed in a personal capacity for private matters are not covered by the convention.

Apostille Requirement: The apostille is a certificate, issued by the competent authority of the document’s issuing country, verifying the authenticity of the signature, seal, or stamp on the document. The apostille is usually attached as an additional page or label to the original document.

Impact on Domestic and International Cases

For Chinese parties involved in legal proceedings abroad, if the foreign country is a contracting state, starting November 7, the apostille procedure can replace the previous consular legalization process. China’s Ministry of Foreign Affairs is the competent authority for issuing apostilles for public documents issued within the country. Local foreign affairs offices in provinces, autonomous regions, and municipalities, as well as some city-level offices, are authorized to issue apostilles for public documents within their jurisdiction. There are 31 local foreign affairs offices authorized to issue apostilles: 25 at the provincial level and 6 at the city level.

The apostille will be issued in the form of a sticker, featuring a silver national emblem seal. Apostilles issued by the Ministry of Foreign Affairs and relevant local offices can be verified online at http://consular.mfa.gov.cn/VERIFY/. Detailed instructions on how to obtain an apostille, including required documents, fees, and processing times, can be found on the China Consular Service website (http://cs.mfa.gov.cn).

This development marks a significant milestone in the simplification of cross-border legal procedures, benefiting both domestic and international litigants involved in cases related to China.

(From NTD,Written by Yang Ning,Du Mengmeng)