Apostille Convention- simple, much more effective means of certifying public documents- Hague Conference SG

Georgetown, GINA, July 15, 2016

The Hague Convention of October 5, 1961, abolishing the requirement of legalisation for foreign public documents (Apostille Convention), proposes a more efficient and effective means of certifying public documents that have to be sent overseas.

This is according to Secretary General, Hague Conference on Private International Law Dr. Christophe Bernasconi, whilst presenting the provisions of the Apostille Convention and e-App Programme to participants of the Hague Conference at the Pegasus hotel.  The three-day, Hague Convention Conference on International Family Law, Legal Co-operation and Commerce ended today.

Dr. Bernasconi added that the Apostille Convention is not widely utilised in the Caribbean region as such the focus of efforts should be on ensuring that it becomes a reality.

“The idea is that the competent authority either gets it in electronic form or scans the paper and issue electronically, and then the public document can easily be sent abroad…If you have an electronic document, you want to be in a position to issue electronic Apostille for scanned documents,” Dr. Bernasconi explained.

Public documents, according to the Convention, are those which emanate from an authority or official connected with a court or tribunal of the State and includes documents issued by an administrative, constitutional or ecclesiastical Court of tribunal (a public prosecutor, a clerk or a process-server).

The main examples of public documents for which Apostilles are issued in practice include birth, marriage and death certificates; extracts from commercial and other registers; patents; court rulings; notarial acts and notarial attestations of signatures; and academic diplomas issued by public intuitions.

Dr. Bernasconi believes that it’s just a matter of time before Apostilles are issued in electronic form due to the significant convenience that they offer. Columbia for example, he cited, issues approximately 6000 electronic Apostilles per day. He therefore urged countries which were not yet parties to the Convention to sign onto it in order to access the benefits.

Asked whether a significant legislative agenda has to be put in place to get to the point of electronic Apostilles, Dr. Bernasconi said that States would first have to ask the basic  questions then based on the response, make positive steps to remedy shortcomings.

“States would have to ask the basic question, if electronic documents are recognised as valid documents…that’s the basics all jurisdictions go through before electronic Apostilles are in place…the next level deals with the question whether scanned documents are treated as original documents…where the response is no, amendments must be made to necessary legislations to ensure scanned documents are treated as originals,” Dr. Bernasconi explained.

He added that under the Convention an Apostille issued by one contracting state has to be recognised in the other. According to the Convention, the only effect of an Apostille is to certify the authenticity of the signature, the capacity in which the person signing the document has acted and where appropriate, the identity of the seal or stamp which the document bears. The Apostille does not relate to the content of the underlying document itself.

To monitor the Convention’s practical operation, Special Commission meetings are convened by the Permanent Bureau of the Hague Conference.

The e-app (electronic Apostille Programme) is an effective tool to further enhance the secure and effective operation of the Convention. It dramatically increases security and offers a very powerful and effective deterrent to fraud. This was launched in 2006 by the HCCH and the National Notary Association of the USA which the aim of promoting and assisting with the implementation of low-cost, operational and secure software technology for the issuance of electronic Apostilles, and the operation of electronic registers of Apostilles that can be accessed only by recipients to verify the origin.

The Apostille Convention facilitates the circulation of public documents executed in one State party to the Convention and to be produced in another State party to the Convention. It does so by replacing the cumbersome and often costly formalities of a full legalisation process (chain certification) with the mere issuance of an Apostille.

The Convention has proven to be very useful for States that do not require foreign public documents to be legalised or that do not know the concept of legalisation in their domestic law. The citizens in these states enjoy the benefits of the Convention whenever they intend to produce a domestic public document in another State party which, for its part, requires authentication of the document concerned.

The Convention also applies to administrative documents; notarial acts and official certificates which are placed on documents signed by persons in their private capacity such as official certificates recording the registration of a document of the fact that it was in existence on a certain date, and official and notarial authentications of signatures.