CORPORATE TRANSACTIONS & COMPLIANCE BLOG

Have You Experienced These Document Legalization Issues?

By: Teri Mayor, COGENCY GLOBAL INC. on Mon, Aug 10, 2015
According to the explanatory documents on the Hague Convention Abolishing document legalizationthe Requirement of Legalisation for Foreign Public Documents (herein after referred to as the “Hague Convention”), legalization means only the formality by which the diplomatic or consular agents of the country in which the document has to be produced certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which it bears.”[i] For the 108 countries that are members of the Hague Convention, that legalization is achieved through the use of an apostille. An apostille is a document or stamp issued by a state official who attests to the items in bold above, allowing the document to be accepted as authentic in another country, as long as that country is also part of the Hague Convention. When the country is not part of the Hague Convention, a different process must be used to legalize the document. This process involves the document having to first be authenticated by the appropriate official in the country of origin and then be further legalized at the embassy or consulate in the country where it will be used. While most of the time, this process is straightforward (though a little more expensive and time-consuming than obtaining an apostille), there are times when the consulate officials do not restrict their reviews to only the authenticity of the signature, the capacity of the signer and the identity of the seal or stamp, but also further review and refuse to legalize documents based on their contents.

 

Jurisdiction Issues: Where Should a Document Be Legalized?
In some cases in the U.S., a foreign consulate will require that a document presented for legalization must be handled by a particular consulate based on the location of the state official whose signature is being legalized. For example, Brazil requires that a New York Good Standing be legalized by the New York consulate, while a Delaware Good Standing must be presented to the D.C. embassy for legalization.

Sometimes difficulties can arise when the state of incorporation does not match the jurisdiction where the document was signed and notarized. For example, not long ago, we were asked to authenticate bylaws of a Delaware corporation that was headquartered in New York. A corporate officer, located in New York, attested to the authenticity of the bylaws and his signature was notarized by a New York notary. The proper steps were then followed: the notary was verified by the County Clerk, the County Clerk verification was authenticated by the Secretary of State of New York and the document was then presented for legalization to the Brazilian consulate located in New York City. That was where the troubles began. The Brazilian consulate refused to legalize the document, because the bylaws were for a Delaware corporation, despite the fact that the document was signed and notarized in New York City. After a great deal of persistence, we were finally able to convince the officer that it was the location of the notary and not the jurisdiction of the corporation that was pertinent and obtained the legalization. While it is not the current policy of the Brazilian consulate that the documents for an entity must be notarized in the state of formation, this situation can crop up, and it is not always possible to convince the consular officer that they do, in fact, have jurisdiction in a case like this.


Problems with the Content
Another difficulty that can arise in the world of legalization is a situation where the consular officer takes exception to something in the document. We experienced this when trying to obtain Dubai consular legalization in Australia. In this case, the document was a contract for a franchise that was to open in Dubai and Kuwait. The contract had been signed by a corporate officer, who was a resident of Australia, and the signature had been notarized and then further authenticated by the Department of Foreign Affairs and Trade, the branch of the Australian government that authenticates documents and notary signatures. The Dubai consulate asked a great many questions regarding the content of the document, why it was notarized in Australia and, specifically, why we were getting the document authenticated for use in Dubai when the contract mentioned franchise locations in Kuwait as well as Dubai. Though each question was patiently and fully answered by the attorney handling the deal, in the end, the consular officer refused to authenticate the notary signature unless all reference to Kuwait was removed.


Effect of Political Controversies
Political controversies can also have an impact on a consulate or embassy official’s willingness to legalize a document. When attempting to get a document legalized by the Chinese embassy or consulate, the mention of one country in particular is highly likely to create issues. The People’s Republic of China does not recognize the existence of Taiwan as a separate country and officially considers it part of China. Because of this, China generally refuses to legalize any document presented to it that mentions Taiwan and insists that it be replaced with the word “China” before it will legalize the document.

 

Consular or Embassy Official Has Last Word
While the legalization process is supposed to verify and authenticate the signatures and seals on a document, some consular and embassy officials interpret their roles more broadly and will examine and reject or approve a document based on what it contains. Unfortunately, there is really no recourse when consular officials refuse to authenticate documents presented to them, even if the reasons seem spurious to the presenter. The consular or embassy official has the last word on the subject, and if he or she believes the document is being handled correctly, it can be extremely difficult and often impossible to convince the official otherwise.

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[i] (http://www.hcch.net/index_en.php?act=conventions.text&cid=41, Article 2, Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (Concluded 5 October 1961)
Note: Bold emphasis is by blog author, not source cited.

 

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

 

Topics: Authentication / Legalization