The long-awaited Apostille Convention finally entered into force in China on 7 November 2023.
The legalization process for foreign documents was replaced by an apostille by designated authorities in a foreign state. Authorities, including the Beijing IP Court, have responded swiftly and in December 2023, issued guidance documents on the implementation of the new apostille system in China. We expect officials and authorities to continue to provide more clarification later this year.
The Apostille Convention
Established in 1961, the Apostille Convention is an international treaty that aims to simplify the process of authenticating public documents for use in another member country. As of November 2023, there are 126 contracting states to the Apostille Convention.
Following the U.K. extension on 25 April 1965, the Apostille Convention was implemented in Hong Kong and continues to remain operative after the 1997 handover to China. China, however, was not a part of the Apostille Convention until November 2023.
Prior to China’s accession to the Apostille Convention, foreign documents which are required to be used in China, including Power of Attorney (“POA”) and corporate documents for legal proceedings in Chinese courts and for IP enforcement actions, were subject to a costly and lengthy validation process. To validate a document, foreign companies and individuals would need to have the document(s) notarized by a notary public in the country of origin, the notary’s credentials authenticated by the local government authority, then legalized through the Chinese embassy or consulate in the relevant country of incorporation/ country of residence (as the case may be).
This process is time-consuming and costly and may take anywhere between a few weeks to several months.
Now that China is a contracting state to the Apostille Convention, foreign companies and individuals from another member state can elect to have their public documents validated with an apostille certificate issued by a competent authority in the foreign country instead. Private documents such as powers of attorneys will still have to be first notarized before they can be apostilled. Though each country’s apostille rules are different, the process is usually significantly reduced to just a few days.
The changes also benefit Chinese companies and individuals and they may elect to have their documents apostilled for use in foreign countries which are also member states of the Apostille Convention.
We expect the new apostille system will be very useful in facilitating foreign trade and investments, as well as IP protection and enforcement efforts. Here are a few examples:
1. Foreign investment and trade
Foreign documents are often required for incorporating foreign-owned enterprises in China, obtaining business licences and incorporation documents or registering changes of the corporate particulars. These can range from foreign entities’ certificates of incorporation, articles of association, and bank statements, etc. As long as they are filed with the official company registry in the relevant member state, the documents can be apostilled for use in China. Board resolutions and other private documents may also be submitted to authorities in China after being notarized and apostilled. Legalisation by the local Chinese Embassy or Consulate is no longer necessary.
2. Court proceedings, including IP protection and enforcement
Proof of corporate subsistence and authority in PRC litigation is also simplified for foreign parties. In the past, foreign parties had to arrange for notarization and legalization of formality and/or authorization documents, such as POA and Board Resolutions authorizing the signing of the POA as well as other corporate documents. Once again, the process will be significantly simplified with the legalisation stage replaced with a straightforward apostille process, because it is not always easy to locate a nearby local Chinese Embassy or Consulate, and in practice, some Chinese Embassies or Consulates may not have the experience in handling legalization and may refuse to entertain the legalization request.
On the IP front, the Beijing IP Court, on 19 December 2023, also issued the “Guidelines for Handling Supporting Documents Certifying the Subject Qualification in Foreign-related Cases”. The Guidelines provide specific guidance on formality documents of litigants from the State of Delaware (US), State of California (US), France, Germany, Belgium, Japan and Korea. Whilst these are only guiding comments, the Guidelines provide additional clarity on what the IP Court requires from foreign litigants from these jurisdictions.
China's accession to the Apostille Convention is a significant and welcomed development. The simplified documentary validation process reduces the administrative burden and costs of foreign companies and individuals with dealings in China. We envisage that PRC courts and other local Chinese authorities will provide further guidance and clarifications in the near future.