On 8 March 2023, the Chinese ambassador to the Netherlands, Tan Jian, submitted the instrument of accession through which China officially ratify the Hague Convention of 5 October 1961 abolishing the requirement of legalization for foreign public documents or Apostille Convention (hereinafter referred to as the “Convention”). In China, the Convention will come into force on 7 November 2023; starting from this date, the procedure of legalization at the consular representation will be no longer required for the documents from and to China.
The Apostille
The Apostille is a certificate that gives full legal effectiveness to any public document to be used abroad. In other words, the Apostille is a special stamp from an authority, identified by the law implementing the Convention, which replaces the classic procedure of legalization of a document through the embassy or consulate of the State in which the document is intended to be used. The stamp affixed is valid in the countries that signed this Convention.
Pursuant to Art. 1 of the Convention, the following are deemed to be public documents:
-
- 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.
Legalization procedure currently in force
The current procedure for the legalization of any document to and from China involves a rather long and costly process. In fact, this procedure requires that any public document shall be first legalized by the competent office in the country of origin and then by the consular representation of the country of destination. In Italy, the competent authorities for the legalization of documents to be used in China are the Prefecture (Prefettura) or the Public Prosecutor’s Office (Procura), depending on the nature of the document: for judicial and notarial deeds, the Public Prosecutor’s Office at the competent court is responsible for legalization; the Prefecture, instead, legalizes deeds and certificates issued by public bodies based in the province with territorial jurisdiction.
Legalization procedure as from 7 November 2023
As of 7 November 2023, the date on which the Convention should enter into force in China, the legalization procedure at the Chinese consular representation will no longer be necessary, as is already the case for documents originating in or to be used in Hong Kong and Macau; any public document to and from China to be used abroad can therefore only be apostilled. Compared to the current procedure, this change would lead to significant reductions in terms of both time and cost required for the legalization of various documents: for example, documents required for the incorporation of companies, the completion of certain company changes, the completion of transactions, the initiation of legal proceedings or the obtaining of work permits.
Technically, the Convention should be implemented when it enters into force, as the Civil Procedure Law of the People’s Republic of China stipulates that the provisions of international treaties – as is the case with the Apostille Convention – take precedence over the provisions of domestic law. However, there may be delays in the implementation of the provisions of this Convention by the courts and government authorities: there are, in fact, governmental provisions that make it mandatory to produce legalized – and not apostilled – powers of attorney or documentary evidence to be used before Chinese courts.
In the coming months, it will be crucial, on the one hand, to clarify the scope of the Convention in China, in order to better identify the categories of documents that qualify as “public”, and, on the other hand, to see whether the above-mentioned laws will be amended in favor of a full implementation of the Convention. In any case, the ratification of the Convention reflects a further clear sign of openness, facilitating many companies and private individuals in carrying out administrative tasks with and from China.
China Desk – Zunarelli Law Firm
