Use of Foreign Documents simplified after Apostille Convention

China has officially acceded to the Apostille Convention. Since November 7, 2023, the Apostille Convention has been in effect in the country. This will save time and costs for companies and individuals, as foreign documents for use in China will no longer need to undergo multiple rounds of authentication by different authorities.

What is the Apostille Convention?

The Apostille Convention was adopted by the Hague Conference on Private International Law (HCCH) in 1961, and it has since been ratified by over 120 countries and regions worldwide, including Hong Kong and Macao. Under the Apostille Convention, a public document that has been issued in one member country can be certified for legal use in any other member country by obtaining an “apostille” certificate from a competent authority designated by the issuing country.

Previously, any foreign documents for purposes ranging from applying for a visa to establishing a business cannot be used in China until they have been notarized by local notary public and then be further authenticated by the Chinese embassy or consulate in the country where the documents are issued. The Apostille Convention eliminates the need for further authentication or legalization by consular or embassy officials, simplifying the process and saving time and costs for recognition of foreign public documents in China.

What documents does the Apostille Convention apply to?

Not all types of documents are covered by the Apostille Convention – only “public documents” as determined in Article 1 of the Apostille Convention are covered which include:

• 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”);

• administrative documents;

• notarial acts;

• 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.

In addition, the Apostille Convention does not apply to diplomatic or consular documents, as well as administrative documents dealing directly with commercial or customs operations.

What does China’s accession mean for foreign trade and business?

1. For foreign investments

Previously, for foreign investments in China, identification documents (such as certificate of incorporation, articles of association and passport) of foreign investors were required to be notarized and certified in home country and further authenticated by Chinese embassy/consulate. Since November 7, 2023, authentication by Chinese embassy/consulate has been replaced by apostille certificate, which means that the process for legalizing documents will be simpler and time-saving.

A number of Chinese embassies in the member states of the Apostille Convention have published announcements to cease consular authentication service since November 7, 2023. However, some local market regulation administrations in China still require consular authentication of identification documents. The recognition and acceptance of apostille certificate by the local market regulation administrations depend on their practice update. According to our consultation, apostille certificates are currently acceptable at least to the market regulation administrations in Beijing, Shanghai, Jiangsu and Hainan. 

2.For Foreign-related litigation/arbitration

Documents necessary for a foreign company to participate in litigation/arbitration in China generally include the company’s certificate of incorporation, power of attorney and certificate of legal representative. Documents necessary for a foreign individual to participate in litigation/arbitration in China generally include his/her identity document (e.g. passport) and power of attorney.

Previously, the above documents and evidence generated overseas were generally required to be notarized by local public notary and further authenticated by Chinese embassies or consulates. Now, the public documents covered by the Apostille Convention only need to be apostilled and other documents can also be apostilled directly after notarization, the apostilled documents can then be commonly used. Below is a summary of the requirements of notarization and apostille for common types of documents involved in foreign related litigations or arbitrations. 

(1) Certificate of incorporation, identity document: apostille

(2) Power of attorney: notarization + apostille

(3) Certificate of legal representative: notarization + apostille

(4) Evidence generated overseas:

• public documents: apostille

• evidence related to identity relationships: notarization  (excluding public documents involving marriage, identity, etc.) + apostille

• other evidence: notarization + apostille

China’s accession to the Apostille Convention will not only bring convenience to parties involved in foreign related litigation or arbitration, enhance litigation/arbitration efficiency, but also improve China’s business environment and benefit China’s economic and trade exchange.