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20 October 2023

Apostille Convention enters into force for China

On 7 November 2023, the Convention Abolishing the Requirement of Legalization for Foreign Public Documents ("the Apostille Convention") will enter into force for China. This means that between China and the other 124 contracting states to the Convention, including Switzerland, public documents will have the option not to go through the legalization process. Instead, the process to certify a public document may be facilitated by the issuance of an Apostille certificate.

What is an Apostille?

"Apostille" is a French word and literally means a marginal or bottom note. Under the Convention, certificates entitled "Apostille" certifying the authenticity of the signature, the capacity of the signing person and the identity of the stamp or seal, are issued by the designated authorities of the contracting parties. The Apostille certificates will serve the same function as legalized certificates provided by the relevant authorities.

In Switzerland, the designated competent authorities are the Federal Chancellery and the Cantonal Chancelleries. In China, the designated competent authorities for issuing Apostille certificates are going to be the Ministry of Foreign Affairs and the mandated local Foreign Affairs Offices. From November 7, 2023, a Swiss public document with an Apostille certificate does not need further diplomatic or consular legalization to be used in China, and vice versa.

What are the public documents that can be apostilled for use abroad?

The Convention regulates the applicable public documents both negatively and positively. It excludes "documents executed by diplomatic or consular agents" and "administrative documents dealing with commercial or customs operations". The exact list of public documents to be apostilled by the Chinese competent authorities will be established in future implementation measures and practice; in view of the usual practice of other contracting parties, notably Switzerland, at least the following public documents are expected to be eligible for apostille certification between China and Switzerland:

  • Commercial documents including corporate articles of association, commercial register extracts, board resolutions, tax registrations, etc.
  • Court decisions and other judicial documents
  • Various notarized documents
  • Personal documents including marriage, birth and death certificates, powers of attorney, certificates of inheritance, educational documents etc.

What are the actual implications in Switzerland and China?  

Currently before a Swiss public document can be used in China, it has to be authenticated. Taking the commercial register extract of a Swiss company as an example, the extract must go through the following three steps in Switzerland before its use in China: 1) issuance of an original commercial register extract by the cantonal commercial register office; 2) legalization at a Cantonal Chancellery; 3) legalization at the Chinese Embassy or Consulate in Switzerland. From November 7, 2023 the second and third steps can be replaced by one certification process – the addition of the Apostille certificate by the competent Swiss authorities.

For Chinese public documents to be used in Switzerland, taking the power of attorney (PoA) used for the incorporation of a company in Switzerland to be signed by a Chinese founder as an example, there are presently two options.

The PoA is signed by the founder or if a company is the founder, by the legal representative, at the Swiss Embassy or a Swiss Consulate in China. (This option does not apply to all kinds of documents.)

After the PoA is signed at a local Chinese notary public, it must go through two steps: 1) legalization at the Chinese Ministry of Foreign Affairs or a local mandated Foreign Affairs Office; 2) legalization at the Swiss Embassy or a Swiss Consulate in China. In the future, these two steps could be replaced by the apostille process.

Outlook

According to Chinese media, more than 70% of the commercial documents for China's exports will benefit from its accession to the Apostille Convention. The apostille process may reduce the time required for cross-border use of public documents between China and Switzerland, and lower the costs. Moreover, a public document with the addition of the apostille certificate, unlike the legalized certificate recognized only bilaterally, will have much wider recognition as it could be accepted in other contracting parties to the Convention.     

We expect that both Chinese and Swiss companies and individuals will benefit from this alternative to the consular legalization; however, the implementation measures and practice of China regarding the Convention (including processing time, the availability of electronic Apostille, charges etc.) remain to be seen.

Category: China Desk

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