CORPORATE TRANSACTIONS & COMPLIANCE BLOG

Apostille, Authentication & Legalization Basics

By: Teri Mayor, COGENCY GLOBAL INC. on Mon, Oct 07, 2013

The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (the “Hague Convention”) of 1961 provides for the simplified certification of public documents. It streamlines the process of authenticating official papers such as court documents, administrative documents such as Good Standing Certificates, documents executed before a notary public and other official certificates executed by individuals in their private capacity, such as vital records, corporate bylaws, etc. Countries which participate in the Hague Authentication and Consular Legalization resized 600Convention certify documents destined for use in another participating country by means of an “apostille.” An apostille certifies the authenticity of the signature on the documents, the capacity in which the person signing the document acted and the identity of any stamp or seal. Once an apostille is affixed, the document will be accepted in all other countries that are party to the convention.  There are currently 105 contracting countries to the convention, including the U.S. and most European countries.  The U.S. became a party to the convention on October 15, 1981. (For reference information and resources related to the authentication and legalization of documents for international use, including a current list of contracting countries to The Hague Convention, visit the Authentication and Legalization Resources page of the COGENCY GLOBAL INC. website.) 

Many countries have not yet joined the Convention, such as China (except Hong Kong and Macau), Brazil and the United Arab Emirates. When either the originating country or the destination country is not a part of the Hague Convention, the process of authenticating or legalizing a document for use in another country becomes much more complex. Below is a summary of the processes to legalize a U.S. document: first, when the destination country is also a party to the Hague Convention; and second, when the destination country is not.

Legalizing a Delaware Good Standing Certificate:

Destination: Party to Hague Destination: Non-Party Country
Obtain Certificate of Good Standing from Secretary of State Obtain Certificate of Good Standing from Secretary of State
Request that an apostille be attached by Secretary of State Request authentication be attached by Secretary of State
  Obtain U.S. Department Authentication Certificate**
  Obtain consular legalization from the country's consulate

 

Legalizing Notarized Power of Attorney in New York

Destination: Party to Hague Destination: Non-Party Country 
 Obtain Notary Authentication from the County Clerk Obtain Notary Authentication from the County Clerk 
 Request an apostill be attached by the Secretary of State Request that an authentication be attachd by the Secretary of State
   Obtain U.S. State Department Authentication Certificate**
   Obtain consular legalization from the country's consulate

**Note that for non-federal documents, U.S. State Department authentication is not always required by the consulate. For example, the Brazilian Consulate in New York does not require a U.S. State Department Certificate if the document was authenticated by the Secretary of State of New York.

Other Complications to the Legalization Process

As the above examples illustrate, when the destination country is not party to the Hague convention, the process usually requires two additional steps. What can further complicate matters is that some countries have more than one representative office in the U.S. and knowing which consulate has jurisdiction can depend on the state in which the document originated or the type of document to be authenticated. Sometimes the question of which consular office has jurisdiction can cause difficulties and confusion. For example, we are aware of a situation where the bylaws for a Delaware corporation were signed and notarized in New York State, by a New York notary. The required notary authentication was obtained from the appropriate county clerk and was, in turn, further authenticated by the Secretary of State. The Brazilian Consulate in New York, however, argued that, as these were the bylaws of a Delaware corporation, the document should be legalized by the D.C. embassy which has jurisdiction over Delaware. The embassy in D.C. argued that the New York branch had jurisdiction. It would not legalize the documents because the documents bore the signature of a New York notary and were authenticated by the New York Secretary of State. While the purpose of both authentication and the apostille process is to verify the authenticity of the signature, as you can see from this example, the contents of a document can sometimes cause difficulties when trying to obtain legalization.

Because the legalization process can often take unexpected twists and turns, a company experienced with the process of legalization and familiar with the procedures and requirements of the various consulates and embassies can often help to make the process smoother and avoid delays.

 

This article is provided for informational purposes only and should not be considered, or relied upon, as legal advice.

Topics: Authentication / Legalization