Key takeaways:
- The 1961 Apostille Convention, effective in China since November 2023, simplifies the process of authenticating foreign documents for use in Chinese courts, reducing processing times and costs by replacing traditional consular legalization with apostille.
- Authentication is only required for specific types of foreign documents under Chinese law, particularly status-related evidence such as the power of attorney (POA).
- Apostille is only necessary if Chinese law mandates authentication and the 1961 Apostille Convention applies.
Almost simultaneously, people who need to use foreign documents in China have started to pay attention to “how to get an apostille”. This has become a hot topic since the 1961 Apostille Convention Abolishing the Requirement of Legalization for Foreign Public Documents (the “1961 Apostille Convention”) came into force in China on 7 Nov. 2023.
Such concern is certainly necessary because the benefits of the 1961 Apostille Convention are obvious. By abolishing the traditional legalization (diplomatic or consular legalization) and replacing it with a simplified procedure (Apostille), the 1961 Apostille Convention speeds up the international circulation of public documents, both time-wise and cost-wise. For example, in the case of Chinese commercial documents that need to be used abroad, acceding to the 1961 Apostille Convention means that one apostille alone can be used in all Contracting States without the need for consular legalization at the embassies or consulates of the relevant countries in China. According to data from the Chinese Ministry of Foreign Affairs, the processing time can be reduced from about 20 business days for traditional consular legalization to a few business days, with the time for document circulation procedures reduced by about 90% on average. The simplified process also reduces the number of fees charged. It is estimated that accession to the 1961 Apostille Convention can save more than CNY 300 million (or USD 41.5 million) in processing fees annually for Chinese and foreign individuals and enterprises.
The same is true for parties planning to submit foreign documents to Chinese courts. With the implementation of the 1961 Apostille Convention, the chain of authentications has been simplified from four steps to three steps. Previously, documents had to be notarized and authenticated in the country of origin, legalized by the Chinese embassy or consulate, and then sent to China for translation. Now, documents submitted by parties from the Contracting States need only be notarized and apostilled in the country of origin before being sent to China for translation and submission to the court.
However, it is not wise to rush into obtaining an apostille indiscriminately. Not all foreign documents for use in Chinese courts require an apostille.
Therefore, the primary question is not how to obtain an apostille, but whether it is needed.
A short answer: You only need to get an apostille if A) Chinese law requires authentication and B) the 1961 Apostille Convention applies.
A）When does Chinese law require authentication?
An apostille is only needed when authentication is required.
To be clear, authentication is a term under Chinese law that includes legalization, apostille, and other means as provided by relevant treaties.
A “foreign document” falls under the category of “evidence formed abroad” under Chinese evidence rules. In China, such evidence does not necessarily need to be authenticated before it can be used in court proceedings. Under Chinese law, including the “Provisions of the Supreme People’s Court on Several Issues Regarding the Evidence in Civil Procedures” (最⾼⼈⺠法院关于⺠事诉讼证据的若⼲规定) and the “Conference Summary on the National Symposium on Foreign-related Commercial and Maritime Trial Work” (全国法院涉外商事海事审判⼯作座谈会会议纪要), the notarization and authentication requirements for evidence formed outside the jurisdiction include the following two points.
a) In terms of the content of the evidence, only status-related evidence (such as business registration, birth/death certificates, marriage/divorce certificates, and powers of attorney (POA)) is required to be notarized and authenticated. No such requirements apply to evidence involving other content.
b) In terms of the issuer of the documentary evidence, if the document is classified as official documentary evidence (such as foreign court judgments, foreign administrative documents, and commercial registration certificates, birth/death certificates, and marriage/divorce certificates issued by foreign public institutions), notarization is required, but authentication is not.
To sum up, first, if a foreign document is considered status-related evidence, authentication is generally required. Second, if the status-related document is considered official documentary evidence under Chinese law, such as business registration certificates issued by a foreign public institution, authentication is not required and notarization alone would suffice. However, if the document is not considered official documentary evidence under Chinese law, such as a POA, authentication is still required. The specific type of authentication, whether apostille, legalization, or other, depends on whether the 1961 Apostille Convention and related conventions apply.
B) When does the 1961 Apostille Convention apply?
Only when we are sure that authentication is required for a foreign document to be used in Chinese courts, then comes the question of which type of authentication, apostille, legalization, or others. And apostille is only applicable when the 1961 Apostille Convention applies.
In short, apostille适⽤《公约》（the 1961 Apostille Convention）缔约国, legalization适⽤⾮《公约》缔约国。
In short, the apostille applies to Contracting States of the 1961 Apostille Convention, while legalization applies to non-contracting states of the 1961 Apostille Convention.
Regarding the application of the 1961 Apostille Convention, three points should be noted:
a) “Contracting State” refers to any State in which the 1961 Apostille Convention has entered into force, including the original Contracting States, and any State that has subsequently ratified or acceded to the Convention, in other words, all State Members of the 1961 Apostille Convention.
b) Official documents that have gone through notarization and consular legalization before the 1961 Apostille Convention came into effect in China can still be used. After the 1961 Apostille Convention came into effect in China, once an official document from another Contracting State is notarized for use in China, only an apostille from that country is required, and no consular legalization is required.
c) If a treaty between China and two or more Contracting States provides for a particular authentication procedure for signatures or seals, and such procedure is simpler and more convenient, the provisions of such treaty shall apply. If the procedure prescribed in the treaty is stricter than that of the 1961 Apostille Convention, the 1961 Apostille Convention shall apply.
Conclusion
In summary, if a foreign document is to be used in Chinese courts, you need to check A) whether authentication is required under Chinese laws and B) whether the 1961 Apostille Convention applies.
If the answers to both A) and B) are YES, take for example a notarized POA originating from a Contracting State of the 1961 Apostille Convention, then yes, an apostille is the right option.
Contributors: Meng Yu 余萌
