On March 8, 2023, China acceded to the Convention on the Abolition of the Requirement of Legalisation for Foreign Public Documents (hereinafter referred to as the "Convention"), where the Convention has entered effect in China on November 7, 2023. In view to provide for additional clarity on the understanding and application of the Convention, improved business landscape, reduced time and costs associated with the cross-border use of documents, facilitation of litigation proceedings for parties in contracting states, safeguarding of legitimate rights and interests of parties, and for better expediency, cost effectiveness and convenience in cross-border use of documents, the Guidelines hereunder are published for reference of all:
I. Scope of Application of the Convention
(i) Article 1, Para 1 of the Convention stipulates that "the present Convention shall apply to public documents which have been executed in the territory of one Contracting State and which have to be produced in the territory of another Contracting State". Documents subjected to the provisions of the Convention are public documents circulated between contracting states. Documents used in a contracting state but executed in a non-contracting state, or documents executed in a contracting state but used in a non-contracting state do not fall within the ambit of the Convention.
The Convention is exclusively applicable to public documents, viz, documents involving official matters, where they shall include, pursuant to Article 1, Para 2: a) 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 ("hussies de justice"); b) administrative documents; c) notarial acts; d) 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.
Documents excluded from the scope of application of the Convention include, pursuant to Article 1, Para 3: a) to documents executed by diplomatic or consular agents; b) to administrative documents dealing directly with commercial or customs operations.
(ii) Interpretation of "Contracting States" under the Convention
"Contracting States", where mentioned in the Convention, shall mean any state where the Convention has entered into effect, encompassing original contracting states and states subsequently ratifying or acceding to the Convention, viz, all states which are parties to the Convention.
(iii) Scope of Application of the Convention
Article 13, Para 1 of the Convention stipulates that "any State may, at the time of signature, ratification or accession, declare that the present Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect on the date of entry into force of the Convention for the State concerned". The term "territories" includes not only the land, water and airspace of a state, but extends to all territories for the international relations of which such state is responsible by its declaration so made.
II. Interpretation of “Additional Certificate”
The term "Additional Certificate" means an Additional Certificate of opinion adhering to the form of the model annexed to the Convention as issued by the competent authority of the state from which a document emanates, and as placed on the document itself or on an "allonge", for the purpose of certifying the authenticity of the signature or seal or stamp affixed on a document, or the capacity or identity of the person signing a document. The Additional Certificate constitutes a document authentication system established by the Convention in ascertaining authenticity of documents following the abolition of the requirement of legalization. Under such system, where a public document executed in the territories of a contracting state is to be produced in the territories of another contracting state, and if accompanied with an Additional Certificate issued by the competent authority of the country of execution, the state where such document is produced shall exempt legalisation procedures required for the same.
The Additional Certificate shall contain two parts of information: 4 items relating to the document, including the country of execution, signatory, identity or capacity of the signatory, and the name of the seal or stamp; 6 items relating to certification: including the place of issuance, date of issuance, issuer, serial number of the Additional Certificate, seal or stamp of the issuing authority, and signature.
In the event where a court is unable to ascertain the authenticity of an Additional Certificate adduced by a party(ices) in the course of trial and enforcement proceedings, such matter may be escalated to the Bureau of International Cooperation of the Supreme People's Court.
III. Comparison of Additional Certificate as Provided under the Convention and Consular Legalisation
(i) Similarities
1. Nature: Attestation of the authenticity of the final seal or stamp or signature on public documents from the country of execution.
2. Function: Allows public documents executed in one state to be recognised in the territories of another.
3. Fees: Both categorised as administrative charges in China, as "Consular Legalisation Fees", with no new fees to be introduced.
(ii) Differences
1. Application toward states: consular legalisation applicable to non-contracting states of the Convention; Additional Certificate applicable to contracting states of the Convention.
2. Operation procedures: "Dual Legalisation" required for certain states where Consular Legalisation is applicable; Additional Certificate waives the requirement of legalisation process at foreign embassies and consulates in China.
3. Contents: Consular Legalisation certifies the wording; Additional Certificate requires certification of the 10 items as provided for under the Convention.
4. Forms: Consular Legalisation requires a sticker with consular legalisation and national emblem; Additional Certificate requires a sticker with the Additional Certificate and national emblem.
5. Mode of Circulation:
(1) Mode of Cross-border Circulation for Consular Legalisation: public documents à foreign-related notarisation or commercial certification (conducted by competent authorities in country of execution) à authentication by foreign affairs authorities (by the Ministry of Foreign Affairs or its delegated authorities in country of execution) à Consular Legalisation (by embassies or consulates of country of use in the country of execution) à country of use of public documents.
(2) Simplified Mode of Circulation under the Convention: public documents à foreign-related notarisation or commercial certification (conducted by competent authorities in country of execution) à Additional Certificate (issued by competent authorities in country of execution) à country of use of public documents.
IV. Application of the Convention in China – Effective by Incorporation
The Convention has been incorporated in China effective on the November 7, 2023, where prior to that foreign public documents intended for use in mainland China are required to be first notarised in the emanating country, and subsequently legalised by consular legalisation at the local Chinese embassy or consulate, denoted by a green consular legalisation sticker affixed at the back of the legalised documents. Prior to the accession, public documents intended for use abroad typically had to undergo consular legalisation twice, once at the foreign affairs body of the country of execution and another at the embassy or consulate of the country of use; following from the accession, the Convention applies among contracting states and the aforementioned legalisation procedures are repealed. Upon incorporation of the Convention in China, consular legalisation is no longer required between China and other contracting states and is replaced by a single Additional Certificate, notwithstanding exceptions for contracting states who made reservations.
Public documents having completed notarisation and consular legalisation prior to the incorporation of the Convention in China, shall remain eligible for use after the incorporation. Upon incorporation of the Convention in China, public documents from other contracting states intended for use in China shall require an Additional Certificate after notarisation, and shall no longer require consular legalisation by the country of emanation and local Chinese embassies or consulates.
V. Examination of Public Documents Involved in Litigation Proceedings
In the examination of public documents involved in litigations, demarcation should be made toward the sets of different provisions in the Convention against public documents emanating from contracting states and from non-contracting states, where specific considerations shall be made as follows:
(i) Application of the Convention in the context of applicable provisions under other treaties, conventions or agreements between China and other states
Correctly understand and apply Article 8 of the Convention, where there is a treaty, convention or agreement between China and one or more contracting states providing for the subjecting the certification of a signature, seal or stamp to certain formalities, and where such formalities are more simplified and expedient compared to those under the Convention, such provisions under the said treaty, convention or agreement shall apply. Where such formalities are more rigorous than the formality referred to in Articles 3 and 4 of the Convention, the Convention shall apply.
(ii) Examination of public documents emanating from non-contracting states
The Convention does not apply to public documents from non-contracting states. Public documents emanating from a state against which China has concluded a treaty, convention or agreement with are examined in accordance with the provisions of such treaty, convention or agreement; where there is no treaty, convention or agreement, such public documents shall first undergo notarisation and subsequently two consular legalisations by the foreign affairs body of the state of emanation and local Chinese embassies or consulates.
(iii) Examination of powers of attorney
Power of attorney produced by a foreign client, where it constitutes a public document between contracting states, shall be examined in accordance with the provisions of the Convention. Power of attorney produced by a foreign client which constitutes a public document between non-contracting states shall be examined pursuant to (ii) above.
Power of attorney produced through postal services by Chinese citizens residing abroad, where it constitutes a public document between contracting states, shall be, pursuant to Article 271 of the Civil Procedure Law of the People's Republic of China (in the case of any discrepancy between any international treaty concluded or acceded to by the People's Republic of China and this Law, the international treaty shall prevail, except for the provisions with respect to which the People's Republic of China has made reservations), subject to the provisions under the Convention, where such power of attorney shall be notarised and accompanied with an Additional Certificate issued by the emanating country, without the need of consular legalisation in such country and by local Chinese embassies or consulates.
Power of attorney produced through postal services by Chinese citizens residing abroad, where it constitutes a public document between non-contracting states, shall, pursuant to Article 62(3) of the Civil Procedure Law of the People's Republic of China (a power of attorney mailed or delivered through others by a citizen of the People's Republic of China residing abroad must be certified by the Chinese embassy or consulate accredited to that country; if there is no Chinese embassy or consulate in that country, the power of attorney must be certified by an embassy or a consulate of a third country accredited to that country that has diplomatic relations with the People's Republic of China, and then transmitted for authentication to the embassy or consulate of the People's Republic of China accredited to that third country, or it must be certified by a local patriotic overseas Chinese organization), not to subjected to the provisions under the Convention, where such power of attorney shall be certified in accordance with the provisions under the Civil Procedure Law of the People's Republic of China above.
(iv) Examination of evidence
Where a public document produced by a party constitutes an evidence formed outside the territories of the People's Republic of China, and falls within the scope of application of Article 16, the Provisions by the Supreme People's Court on Evidence in Civil Procedures (referred to hereinafter as the "Provisions on Evidence") and the scope of public documents defined under Article 16 the Minutes of the National Working Symposium on Foreign-related Commercial and Maritime Trials (referred to hereinafter as the "Minutes"), such document shall be examined accordingly as provided for under the Provisions on Evidence and Minutes.
Where evidence produced by a party is formed outside the territories of China relates to status relationship, and which constitutes a public document emanating from a contracting state to the Convention, the provisions of the Convention shall apply. Additional Certificate is required following notarisation, without the need of consular legalisation in the emanating country and by local Chinese embassies or consulates.
Where evidence produced by a party is formed outside the territories of China relates to status relationships, and which constitutes a public document emanating from a contracting state to the Convention, the provisions of the Convention shall not apply. Such evidence shall, pursuant to Article 16 of the Provisions on Evidence and Article 16 of the Minutes, be notarised by a notarising body in the emanating country and legalised by a local Chinese embassy or consulate, or subjected to authentication procedures stipulated in relevant treaty(ies) between the People's Republic of China with such emanating country.
Article 16, Provisions on Evidence: Where the official documentary evidence provided by a party is created outside the territory of the People's Republic of China, the evidence shall be certified by the notary office of the country where the evidence comes, or the certification procedures as set forth in the relevant treaty concluded between the People's Republic of China and the country shall be performed. For evidence related to status relationships created outside the territory of the People's Republic of China, the evidence shall be certified by the notary office of the country where the evidence comes and authenticated by the embassy or consulate of the People's Republic of China in the country, or the certification procedures as set forth in the relevant treaty concluded between the People's Republic of China and the country shall be performed.
Article 16, Minutes: [Foreign official documentary evidence] For the purposes of Article 16 of Some Provisions of the Supreme People's Court on Evidence in Civil Procedures, official documentary evidence shall include the decisions and rulings made by foreign courts, documents issued by foreign administrative authorities, and commercial registration, birth and death certificates, marital status certificates, and other documents issued by foreign public authorities, but exclude documents issued by foreign forensic service institutions and other private institutions. If official documentary evidence originates outside the territory of the People's Republic of China, it shall be proved by a notary office of the country where it originates, or the corresponding proof procedures shall be followed, unless the authenticity of the official documentary evidence can be corroborated on the Internet, or the parties on both sides do not challenge the authenticity of the official documentary evidence.
VI. Understanding of Public Documents in Specific
(i) Public documents within scope of application of the Convention.
Public documents prescribed under Article 1, Para 2 of the Convention includes the four types as follows:
(1) 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. Courts or tribunals shall be broadly construed to include judicial, administrative and constitutional courts and tribunals.
(2) administrative documents. Typical administrative documents include, among others, certificates of birth, death and marriage, company registrations, intellectual property registrations, educational certificates, licenses, medical and health certificates, criminal and police records.
(3) notarial acts. In most common law countries, notarisation is a legal profession where notary offices or notary publics authenticates certain facts in an official capacity. Notarial certificates are documents issued by local or international notaries recording the occurrence of certain facts as authenticated. The notarial system in China is centred around notary offices, where notary publics conduct notarial activities in notary offices as their place of business. In Hong Kong, the notarial system centres around notary publics, where they conduct office in, among others, legal firms.
(4) official certificates which are placed on documents signed by persons in their private capacity, such as approval of registration, certification of dates and signatures. Certificate placed on documents signed by persons in their private capacity does not mean documents themselves so produced which relate to the conducting private matters, but to the official certificate attached to them. For instance, official certificate recording the registration or the fact of existence of a document on a specific date, as well as official certifications and notarisations of signatures. The question on whether official certificates could be issued for documents signed by persons in their private capacity shall be determined by laws of the country from which such documents emanate.
(ii) Public documents excluded from the application of the Convention.
Article 1, Para 3 of the Convention provides for the two types of documents excluded from its scope of application:
(1) documents executed by diplomatic or consular agents. Pursuant to Article 5 of the Viena Convention on Consular Relations, diplomatic or consular offices of a country in another country has capacity to perform notarial functions by their home country. In practice, the authenticity of documents executed by diplomatic or consular agents are well recognised across countries, and are viewed as authenticated document without the need for further certification. Thus, the Convention does not apply to documents of the sort.
(2) administrative documents dealing directly with commercial or customs operation. This aligns with the requirements of the World Trade Organisation on simplified certification. Documents such as the commonly issued certificates of origin or export and import permits often do not require any certification on the signatures or seals or stamps affixed, but the verification on their substantive contents. As such, the Convention does not apply to documents of the sort.
VII. Competent Authorities and Procedures for the Issuance of Additional Certificates in China
The Ministry of Foreign Affairs of China is the competent authority for the issuance of Additional Certificates, and issues Additional Certificate for public documents executed within the territories of the country. The Consular Affairs Department of the Ministry of Foreign Affairs is the executive body, where Additional Certificates are issued by the Ministry of Foreign Affairs and its delegated local foreign affairs offices. Acting under powers delegated by the Ministry of Foreign affairs, local people's government foreign affairs offices in China may issue Additional Certificates for public documents issued within their administrative regions.
Chinese Additional Certificates will be in the form of stickers with a silver national emblem. Certificates issued by the Ministry of Foreign Affairs and relevant local foreign affairs offices support online verification, accessible the following website http://consular.mfa.gov.cn/VERIFY/.
For specific procedures and requirements for obtaining Additional Certificates, please visit the Chinese Consular Service website (URL: https://cs.mfa.gov.cn/) or websites of relevant local foreign affairs offices.
List of Local People's Government Foreign Affairs Offices Issuing Additional Certificates
(31 in total)
Anhui Province, Chongqing Municipality, Fujian Province, Guangdong Province, Guangxi Zhuang Autonomous Region, Guizhou Province, Henan Province, Heilongjiang Province, Hubei Province, Hunan Province, Hainan Province, Jilin Province, Jiangsu Province, Jiangxi Province, Liaoning Province, Sichuan Province, Shandong Province, Shanghai Municipality, Shaanxi Province, Yunnan Province, Zhejiang Province, Gansu Province, Hebei Province, Shanxi Province, Inner Mongolia Autonomous Region, Changchun City, Harbin City, Ningbo City, Jinan City, Qingdao City, Shenzhen City.
VIII. List of Contracting States to the Convention and Guide on Application Procedures in Contracting States
(i) List of Contracting States to the Convention
(as of October 23, 2023)
Asia (22 countries):
China, Armenia, Azerbaijan, Bahrain, Brunei, Georgia, India, Indonesia, Israel, Japan, Kazakhstan, Kyrgyzstan, Mongolia, Oman, Pakistan, Philippines, South Korea, Saudi Arabia, Singapore, Tajikistan, Turkey, Uzbekistan
Africa (16 countries):
Botswana, Burundi, Cape Verde, Eswatini, Lesotho, Liberia, Malawi, Mauritius, Morocco, Namibia, Rwanda, Sao Tome and Principe, Senegal, Seychelles, South Africa, Tunisia
Europe (44 countries):
Albania, Andorra, Austria, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Montenegro, Netherlands, North Macedonia, Norway, Poland, Portugal, Moldova, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Ukraine, United Kingdom
North America (21 countries):
Antigua and Barbuda, Bahamas, Barbados, Belize, Canada, Costa Rica, Dominica, Dominican Republic, El Salvador, Grenada, Guatemala, Honduras, Jamaica, Mexico, Nicaragua, Panama, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago, United States
South America (12 countries):
Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay, Venezuela
Oceania (10 countries):
Australia, Cook Islands, Fiji, Marshall Islands, New Zealand, Niue, Palau, Samoa, Tonga, Vanuatu
Note 1: On January 11, 2024, the Convention will enter into effect for Canada, and its application between China and Canada shall commence on the same day. On June 5, 2024, the Convention will enter into effect for Rwanda, and its application between China and Rwanda shall commence on the same day.
Note 2: The Convention does not apply between China and members whose sovereign status(es) are not recognised by China.
Note 3: The Convention does not apply between China and India.
(ii) Guide on Application Procedures in Contracting States
Contracting states generally designate their ministries of foreign affairs or home ministries as the competent authority(ies) for the issuance of Additional Certificates. Taking New Zealand as an example, the Chinese Embassy in New Zealand has announced the suspension of consular legalisation services effective from November 7. For documents executed in New Zealand intended for use in mainland China, applicants should apply for Additional Certificates from the competent authorities in New Zealand.
The Department of Internal Affairs of New Zealand is the competent authority for handling Additional Certificates. Address: 45 Pipitea Street, Wellington. Mailing address: Department of Interior, PO BOX 10526, Wellington 6140, New Zealand. Phone: +64 (4) 460 2221, Electronic mail: auth.unit@dia.govt.nz, Website: www.govt.nz/authentications.
For companies or individuals residing abroad requiring authentication services, please consult the Chinese embassy or consulate in the country of residence or the competent authority designated by the country of residence for issuance of Additional Certificates.
IX. Guide on Circulation of Public Documents Related on Hong Kong, Macao and Taiwan
Prior to the accession, the Convention is applicable to the Hong Kong Special Administrative Region and the Macao Special Administrative Region of China, where the Convention will continue to apply to both Special Administrative Regions. The arrangements for the circulation of documents between the Hong Kong and Macao Special Administrative Regions and member states of the Convention will remain unchanged. Following the effective incorporation of the Convention in China, the current practices of bilateral document circulation between mainland China and the Hong Kong and Macao Special Administrative Regions, as well as between mainland China and the Taiwan region, shall remain unaffected.
X. Guide on Online Video Witnessing for Cross-border Litigants
The People's Court provides a range of services for parties to cross-border litigations, including guidance on online case registration, consultations, video witnessing through appointed representatives, case registrations and filings, conducted in accordance with the Several Provisions on Providing Online Case Filing Services for Cross-border Litigants by the Supreme People's Court (referred to hereinafter as the "Provisions on Online Case Filing Services").
Foreign parties to cross-border litigations shall perform identity verification through online submission of the following materials to the governing court: foreigners shall submit identification documents such as passports; corporates and organisations shall submit identity certification documents and documents certifying that the person representing such corporates or organisations in litigations is a duly authorised representative, where such documents shall be notarised by notary bodies in their country of origin. In the event of specific provisions provided for under international treaties and conventions executed, contracted or acceded by China and the country of origin of such foreigners, foreign corporates and organisations, such specific provisions shall apply, save except for provisions against which China has made reservations.
Public documents of non-contracting states are not subject to the scope of application of the Convention. Where China has executed treaties, conventions or agreements with a non-contracting state, examination shall be conducted in line with the provisions of such treaties, conventions and agreements. In absence of such treaties, conventions and agreements, the certification documents shall be notarised in notary bodies of the country of origin, and legalised by Chinese embassy or consulate in such country. Where the country of origin of foreigners, foreign corporates and organisations have established no diplomatic relations with China, such certification documents may be notarised by a local notary body, and legalised by an embassy or consulate of a third country against which China has established diplomatic relations, and subsequently legalised by the Chinese embassy or consulate in such third country.
Parties to cross-border litigations who have completed identity verification and engaged a local law firm in representing themselves in litigations may apply to the governing court for online video witnessing.
Online video witnessing is initiated by a judge, where the judge, cross-border litigants and appointed lawyers get connected live via a tripartite video call. Cross-border litigants shall communicate in the common language of the People's Republic of China or through an interpreter, and the judge shall ascertain whether the appointed lawyers, their law firm and their representation of the client reflects the genuine intent of the cross-border litigant. Witnessed by a judge via video call means, cross-border litigants and their appointed lawyers shall sign and execute the required powers of attorney, with no further need of notarisation, authentication, delivery and other procedures. Following the online video witnessing process, appointed lawyers may represent their clients in commencing online case filing, online payment and other matters.
