Beginning November 7, 2023, the Apostille Convention of the Hague Conference on Private International Law will come into effect in mainland China. Upon effectiveness, the country will replace the current legalization process for cross-border documents with the apostille certification method under the Convention.
This change comes after China acceded to the Convention in March 2023, joining 126 other contracting states to the Convention. The Convention will continue to apply in Hong Kong and Macao.
BENEFITS OF MOVING AWAY FROM LEGALIZATION
For decades, legalization (or consular authentication) has been the primary means for certifying cross-border documents. To be used in China, foreign-produced documents typically must be notarized and then legalized at the Chinese Embassy or Chinese Consulate. The legalization procedure has been at times complicated, time-consuming, and costly, presenting roadblocks for non-Chinese investors carrying out business in China.
It is not uncommon for timetables for registration of incorporation or corporate changes to be delayed while waiting for the corporate files of a foreign parent company to be legalized at the Chinese Embassy or Chinese Consulate. The wait time for legalization can be up to three months or longer in practice. The process can also be cumbersome for parties in cross-border and offshore transactions, as corporate registration or filings of Chinese subsidies requiring legalized foreign corporate documents may complicate deal closings.
Similar requirements by courts and law enforcement authorities in mainland China can also decrease the efficiency of legal proceedings and cause parties, particularly non-Chinese parties, to incur additional costs (e.g., for admission of evidence generated outside of China).
APOSTILLE CONVENTION
The apostille convention was created to move away from traditional requirements of legalization and replace oftentimes lengthy legalization processes with “the issuance of a single Apostille certificate by a competent authority in the place where the document originates.” For China, such authority is the Ministry of Foreign Affairs and its local counterparts.
After the Convention becomes effective in China, the use of documents between China and other signatories to the Convention will no longer require legalization by embassies or consulates. Instead, the process will be replaced by an apostille by the designated authority in the state of origin, which will be recognized in the state of destination. This will significantly simplify the document certification process, benefiting not only non-Chinese parties, but also Chinese companies and citizens.
In recent practice, we have noted that local branches of the Administration of Market Regulation (AMR) have been making efforts to adapt to the upcoming effective date of the Convention. The AMR in major cities such as Beijing and Shanghai have expressed that they are open to accept apostilles or other flexible approaches as an alternative to the legalized corporate documents of foreign parents that they used to require for a change of the authorized signatory of a foreign parent company.
Based on consultation with certain local ARM, such move is made on a pilot basis, as the AMR are internally streamlining the process for corporate registration and filing. We expect official guidance to be published soon.
Notwithstanding the above, the completion of an apostille does not guarantee the acceptance of the foreign-produced document by the relevant authority in China. It is recommended that affected parties check with the relevant authority in China in advance with respect to their specific requirements for format, content, time limit, and translation, among other information, before going through the relevant procedures, particularly during the transition period.
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