The Hague Conference's
Apostille Convention provides a method of authenticating seals (and signatures) on public documents to facilitate use of those documents internationally.
Although
the Apostille Convention dates from 1961 and prescribes a form for the apostille, which must be signed, nothing expressly requires it to be in tangible form.
There is a bit of interest in
the Apostille Convention across the country.
Presumably serving as a commissioner for an affidavit is an even stronger case in the same sense, as the document is a public document (within the meaning of
the Apostille Convention anyway — not sure the term has much sense in a common law jurisdiction otherwise), and the commissioner is supposed to identify the signer with some certainty and understand the oath, declaration or affirmation to be genuine and unforced.
The Canadian Bar Association has urged the federal, provincial and territorial governments of Canada to do what is needed to ratify
the Apostille Convention.
It matters because if Canada becomes a party to the Hague
Apostille Convention (known formally as the Convention on the abolition of all forms of legalization), then it will be contrary to the Convention for anyone in Canada to ask for legalization.
Such a clause helps Canada because it is hard to get provincial and territorial unanimity to legislate, even for uncontroversial matters like
the Apostille Convention.
Not exact matches
Instead, people here have to accept an
apostille under the
Convention as sufficient authentication of the documents in question.
Presumably, however, they can be persuaded to accept an
apostille from a
Convention state in the place of legalization.
If no one in Canada asks for legalization now, we can accede to the
Convention based on administrative agreements among federal / provincial / territorial governments to issue
apostilles under certain circumstances.
Though the
Convention dates from 1961 (and now has about 100 member states — though not yet Canada), it does not require
apostilles to be on paper.
Since Canada is considering acceding to this
Convention, this column will review some of the issues involved in that process and in particular the technological frontiers of authentication that The Hague Conference on Private International Law is exploring with respect to electronic
apostilles.
The electronic
apostille (and register): Under the Hague Conference on Private International Law's
Convention on the Abolition of All Forms of Legalization, member states may authenticate public documents for use in other member states by use of a certificate called an
apostille.
Tying authentication to privacy again: the Conference recommends (in paragraph 5a) that the numbers that the
Convention requires to be on the
apostilles be generated randomly, or at least not sequentially, to make it difficult for someone to ask for details about an
apostille without having the actual
apostille in hand.
In Hague
Convention countries one simply attaches the
Apostille, you get from the national competent authority — and then the document is recognized in the foreign state.
All documents forwarded or delivered under this
Convention shall be exempt from legalisation or any analogous formality, including an
Apostille.
I am also aware of preliminary developments of electronic
apostilles (certificates of authenticity under the Hague
Apostille / Legalization
Convention), though they are not widespread yet, and the technology will not exist in every... [more]
Perhaps — but such access could occur with the paper - based registers that the
Convention has always required of
apostille issuers.
The Hague Conference on Private International Law has been promoting electronic certificates of authenticity (
apostilles) under its
Apostille (Legalization)
Convention.
Though the
Convention refers to card indexes as well as registers, the latter — media - neutral — term is now preferred for the official record of
apostilles issued.
Adopting the
Convention would also eliminate today's frequent duplication of provincial and federal authentication; any single
apostille will suffice under the
Convention.
Further, states party to the
Convention were encouraged (at the Sixth International Forum on the E-App in 2010, Conclusions and Recommendations, paragraph 5 (a)-RRB- to issue
apostilles with non-consecutive numbers.
The
Convention prohibits any state party from requiring even the
apostille if they have not previously demanded legalization.
It may be that the Hague Legalization
Convention about which I wrote last month can be implemented by administrative action to create a system to issue and keep a register of
apostilles.
Different techniques for the e-
apostille are being used or developed in different member states of the
Convention, and they may use different approaches to creating the seal on the
apostille.
(The form of the
apostille is annexed to the
Convention.)
That said, it is not clear on the face of the
Convention or in the supporting documents whether a state that received an electronic
apostille could refuse to give it legal effect because of concerns about the security of the method by which it was signed.
Other member states of the
Convention (there are over 100 of them) accept the
apostille as proof of the signature and seal.
For more information on countries party to or bound to this
convention, please visit the Hague Conference website,
Apostille Section.
Authentications are often called «legalizations,» sometimes «incumbencies» or «certifications»; an
apostille is a form of authentication appropriate to countries which have consented to be bound by the 1961 Hague
Convention Abolishing the Requirement of Legalization for Foreign Public Documents.
The Hague
Convention is an international treaty which sets out how documents can be verified and an
Apostille is the certification.
Should the country not be a member of the Hague
Convention, such as Saudi Arabia or Ghana, then an
Apostille is not acceptable and once the documents have been notarised they need to be sent to the Department of Foreign Affairs for authentication.
If the country in which the buyer will be signing the documents is a member of the Hague
Convention, he or she can sign in front of a Notary Public and an
Apostille will be attached.