In some cross-border transactions the obtaining and authentication of “public documents” from international authorities can be a time-consuming bottleneck. Before a public document can be used in a country other than the one that produced it, its origin must be authenticated. This has been addressed by the Hague (aka Apostille Convention), which simplifies the exchange and transmission of public documents issued and used by countries that stand by to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents. This article provides a brief explanation of the process for authenticating documents under the Hague Apostille Convention and under alternative legalization methods. Here we’ll discuss the documents originated in the state of New York, but many of the rules apply to other U.S. states.
The Apostille Convention is a joint treaty that was drafted by the Hague Conference on Private International Law (the “Hague Conference”). It was first enforced in 1965 by the initial ratifying states, including the United Kingdom, the Netherlands, and Hong Kong. The Hague Apostille Convention specifies how certain types of documents issued in a participating State can be certified for legal purposes in the other States members to the Treaty. The Convention covers only “public documents,” such as a birth certificate, certificate of marriage registration, death record, court document, an administrative document, a notarial act, or other official certificates. The members of the said Convention may further narrow the types of documents that may be certified by means of an apostille.
A certification pursuant to the Convention is called an “apostille”; it is usually equivalent to notarization in national law and supplements notarization of the document under applicable domestic law. Where the country of origin and the destination country are both signatory States of the Hague Apostille Convention, an apostille authenticates the validity of a document and eliminates the need for double-certification, namely notarization by the originating country followed by legalization by the receiving country.
Apostilles are affixed to public documents by “competent authorities” designated by (or under delegation from) the government of a country that is party to the Apostille Convention. For instance, in the state of New York, the New York Secretary of State is the nominated competent authority who holds the power to issue an apostille. In order for a document to be eligible for an apostille, it must have been issued or certified by an appointed officer acknowledged by the competent authority issuing the apostille. For example, in the state of New York, notaries public are commissioned by the New York Secretary of State and qualified (registered) in the county in which they have been commissioned. Therefore, a document that has been attested by a notary public in New York State may receive an apostille when the document has been duly notarized and then certified by the county clerk in the county where the notary is qualified.
Nevertheless, the process is different in the case of birth, death, marriage, and divorce records (whether divorce certificates or judgment of divorce) issued by the New York City Office of Vital Records or Clerk of the Court because the New York Secretary of State does not directly recognize these offices. Therefore, the signature of the city clerk has to be verified by the county clerk of New York County to make the birth, marriage or death certificate eligible for an apostille. In another U.S. states, Department of Treasury, the Supreme Court, or other government body may have apostille authority. Each U.S. state has its own exceptional rules of practice: some states have a simple one-step process (NJ, PA, CA, MA, VI, FL etc.) and others a multi-step process (New York State, Maryland, Georgia and others).
The Convention prescribes the form and substance of the apostille itself, which is a printed form document consisting of 10 numbered fields and approved language. It is important to understand that the apostille must be obtained from the proper authority in the same state where the document was issued or notarized. In order for the certification to be deemed authentic, the issuing institution must use particular language placed either on the document. Once the apostille is produced, it is ready for presentation to competent administrative or judicial bodies of the receiving country.
It is important to note that the apostille does certify the content of the document for which it is issued. In other words, it does not certify that the content is correct or accurate. It only certifies the authenticity of the signatures of the public officials on the document, their capacity and, in some cases, an authenticity of the official seal or stamp affixed on the document.
Although the apostille serves an important purpose in international documents exchange, the issue with the Apostille still happen. Apostille fraud occur now and then particularly to the extent that competent authorities and certifying entities do not confirm the content of the document being apostilled. There have been several instances where a document has been properly authenticated by apostille but it was discovered later that the underlying document is not valid. For example, a judgement of divorce, authenticated and apostilled, here and there found invalid because a defendant contested divorce overseas stating that he had been never served with the Final Judgement in the U.S. This caused that recently more and more foreign countries started to ask for of Non-Appeal Certificate, duly authenticated and apostilled, in addition to the judgement of divorce.
The E-Apostille program was implemented in 2007.
The e-apostille component involves the use of a digitally signed electronic file that is transmitted by electronic means, such as e-mail, or is otherwise made available for download or viewing from a website. This electronic file contains an electronic apostille certificate attached to either an original electronic public document or a paper document that has been previously scanned. The e-apostille may be attached by incorporating the e-apostille and the public document into a single PDF document, or by attaching the e-apostille to the public document as a separate file.
Advantages of the use of the e-apostille component include non-expiration of e-apostilles, which continue to be valid even after the digital certificate of the person signing the e-Apostille expires; an easy and secure method of attaching apostilles to the underlying public document, as required by the Convention; and a decrease in the possibility of fraud associated with the attachment of traditional paper apostilles. In addition to fighting fraud and reducing the operational costs associated with paper apostilles, e-apostilles can be freely used with paper public documents that are subsequently scanned and digitized. This brings the Apostille Convention in tune with the growing trend among government authorities to execute and make public documents available in electronic format.
Read this article and still have questions? Have a document which requires apostille in New York or other state? Contact us for more detailed answers!
