Convention on the Abolition of the Requirement of Legalization for Foreign Public Documents
The "Convention on the Abolition of the Requirement of Legalization for Foreign Public Documents" (the "Convention") aims to "abolish the requirement of diplomatic or consular legalization of foreign public documents", so as to accelerate the cross - border circulation process of public documents. The Convention came into force in China on November 7, 2023. Starting from November 7, for public documents (public documents) sent by China to other Contracting States (except India, Hong Kong and Macau) (for the list, see the following), only the Apostille specified in the Convention needs to be processed, and then they can be sent to other Contracting States for use. There is no need to go through the consular legalization of China and the embassies and consulates of the Contracting States in China. For public documents of other Contracting States sent to the Chinese mainland for use, only the Apostille of that country needs to be processed, and there is no need to go through the consular legalization of that country and the Chinese embassies and consulates in the local area.
According to Article 1(2) of the Convention, the scope of "public documents" includes:
(1) Documents issued by an authority or official in connection with a court or tribunal of a State, including documents issued by a public prosecutor, a clerk of the court or an enforcement officer of the law;
(2) Administrative documents;
(3) Notarial documents;
(4) Official certification of documents signed in a private capacity, such as official certification of the registration of a document or the recording of a fact existing on a specific date, as well as official and notarial certification of signatures.
However, the Convention does not apply to:
(1) Documents made by diplomatic or consular agents;
(2) Administrative documents dealing directly with commercial or customs operations.
This article is divided into two parts to briefly review the changes in notarization and authentication procedures for foreign natural persons or foreign companies involved in litigation in Chinese courts after the entry into force of the Convention. The documents mainly related to notarization and authentication procedures are as follows:
Identity - related documents (for natural persons: passports, etc.; for companies: company registration certificates and certificates of legal representatives)
Documents such as power of attorney and statement of claim involving the signatures and seals of foreign entities
Objective evidence documents
Since the requirements for notarization and authentication procedures of the first two types of documents vary depending on the identity of the subject, while those of objective evidence documents are not affected by the subject's identity. The first part of this article mainly briefly introduces the notarization and authentication matters of ① identity - related documents and ② signature - related documents such as power of attorney and statement of claim that need to be submitted by foreign natural person subjects. The second part mainly briefly introduces the notarization and authentication matters of ① identity - related documents and ② signature - related documents such as power of attorney and statement of claim that need to be submitted by foreign company subjects, as well as the notarization and authentication matters of objective evidence documents, for reference.
Notarization and Authentication Matters for Foreign Natural Persons Participating in Litigation in China
1. Foreign Natural Persons within China Participating in Litigation
Since generally there is no requirement for overseas notarization and authentication in this case, the entry into force of the Convention will not affect the notarization and authentication procedures for foreign natural persons within China participating in litigation.
1.1 The Foreign Natural Person Appears in Court in Person
a. Identity documents: After providing his/her identity document (passport) and entry information, generally no notarization, authentication or other certification procedures are required.
b. Power of attorney and statement of claim: Sign the power - of - attorney materials and the statement of claim simultaneously under the witness of the case - filing review judge. No notarization or authentication procedures are required.
[Explanation of Legal Provisions]
Article 19 of the "Notice of the Supreme People's Court on Printing and Distributing the Minutes of the Second National Foreign - related Commercial and Maritime Trial Work Conference": "The power of attorney signed by a foreign natural person in the presence of the handling personnel of the people's court does not need to go through notarization, authentication or other certification procedures. However, when signing the power of attorney, the identity certificate and entry certificate should be presented. The handling personnel of the people's court should indicate the relevant situation on the power of attorney and require the foreign natural person to confirm it."
Article 523 of the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China" (2022 Amendment): "If the representative of a foreigner, a foreign enterprise or an organization signs a power of attorney in the presence of a judge of the people's court to entrust an agent to conduct civil litigation, the people's court shall recognize it."
1.2 The Foreign Natural Person Cannot Appear in Court in Person
a. Identity documents: Generally, it is required that the foreign natural person go through the authentication procedures at the embassy or consulate of his/her country in China.
b. Power of attorney and statement of claim: Provide a notarized document notarized by a notary public office in China.
[Explanation of Legal Provisions]
Article 20 of the "Notice of the Supreme People's Court on Printing and Distributing the Minutes of the Second National Foreign - related Commercial and Maritime Trial Work Conference": "The power of attorney signed by a foreign natural person within the territory of China, which is notarized by a notary public office in China to prove that the power of attorney is signed within the territory of China, does not need to go through notarization, authentication or other certification procedures in his/her country of origin."
Article 524 of the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China" (2022 Amendment): "If the representative of a foreigner, a foreign enterprise or an organization signs a power of attorney within the territory of the People's Republic of China to entrust an agent to conduct civil litigation and it is notarized by a notary public institution of the People's Republic of China, the people's court shall recognize it."
Note: In practice, the court is relatively cautious in applying Article 523 of the "Interpretation of the Civil Procedure Law" and is often more inclined to apply Article 524. Therefore, it is advisable to communicate with the staff of the case - filing tribunal in advance before preparing the materials.
2. Foreign Natural Persons outside China Participating in Litigation
2.1 Before the Entry into Force of the Convention, the Documents and Procedures for Foreign Natural Persons outside China Participating in Litigation:
Step 1: The foreign natural person goes through the notarization procedures in his/her country of nationality (notarization content: identity - related documents such as passports, power of attorney, statement of claim), and the notary public office issues a notarization certificate.
Step 2: After the notarization procedures are completed, it is then authenticated by the embassy or consulate of China in that country, that is, the Chinese diplomatic embassy or consular office certifies on the notarized document that the last signature or seal of the notary public office is true.
[Explanation of Legal Provisions]
Article 275 of the "Civil Procedure Law of the People's Republic of China" (2023 Amendment): "If a foreigner, a stateless person, a foreign enterprise or an organization that has no domicile within the territory of the People's Republic of China entrusts a lawyer or other person in the People's Republic of China to act as an agent in litigation, the power of attorney sent or delivered from outside the territory of the People's Republic of China shall be notarized by the notary public office of the country where it is located and authenticated by the embassy or consulate of the People's Republic of China in that country, or after going through the certification procedures specified in the relevant treaties concluded between the People's Republic of China and the country where it is located, it shall be valid."
2.2 After the Entry into Force of the Convention, the Documents and Procedures for Foreign Natural Persons outside China Participating in Litigation:
For identity - related documents such as passports or power of attorney and statement of claim sent or delivered from abroad, it is still necessary to go through the notarization of the notary public office of that country. Thereafter, if it is a Contracting State of the Convention, then obtain the Apostille issued by the competent authority of that country (no need to go through the consular authentication procedures again); if it is a non - Contracting State, then it is still necessary to complete the authentication procedures of the Chinese embassy or consulate in the local area.
[On the Handling of the "Apostille"]
The handling agency of the "Apostille" is not the document - making unit. The "competent authority" of the "Apostille" specified in the Convention is the Ministry of Foreign Affairs of China, which issues the "Apostille" for public documents issued within the territory of China. Entrusted by the Ministry of Foreign Affairs, the foreign affairs offices of the people's governments of relevant provinces, autonomous regions, municipalities directly under the Central Government and some city people's governments in China can issue the "Apostille" for public documents issued within their respective administrative regions.
The "Apostille" has the same function as the consular authentication certificate. It only certifies that the last seal and signature on the public document are true and is not responsible for the authenticity and legality of the content of the public document itself. The authenticity of the content of the public document still follows the principle of "whoever issues it is responsible".
["Apostille" Sample Diagram]
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