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by David Greenberg
Assistant Vice President, International Collections
Typically, when pursuing international collections requiring legal action, the creditor will have to "legalize" certain documents before they are acceptable to the courts in the debtor’s country.
Legalization is a process whereby the authority of a Notary Public in the creditor’s country is authenticated by an authorized authority from the debtor’s country.
Why is such a step necessary? The seal of a Notary Public can be verified as true and in force in the country in which it is issued. However, how would a court in France know that the seal of a California, USA Notary Public is genuine? It would be nearly impossible for that French court to maintain accurate lists of qualified Notaries in the United States or worldwide. Yet, it is critical for that court to have means of verification if it is to ensure that documents presented are authentic.
There are basically two mechanisms established to legalize foreign documents for international purposes:
Legalization by Consular Stamp. The Consulate of the country requiring the legalization affixes a stamp to the document ensuring its authenticity.
Legalization by Apostille. An apostille is a special stamp issued by a competent authority in each country that is responsible for ensuring the credentials of Notary Publics in that jurisdiction. The Hague Convention Abolishing the Requirements of Legalization for Foreign Public Documents (Convention #12), originally ratified in 1961 provides for this method of document legalization. The apostille is a preprinted form prescribed by the Convention. However, only nations that are signatories to the Hague Convention will recognize apostille certification.
Basic Legalization Process
A creditor with a collection claim against a foreign debtor might be required to legalize an Affidavit, Power of Attorney, or other such form. The process is as follows:
- The creditor signs the form in the presence of a Notary Public.
- The creditor sends the Notarized form to either a) the competent authority specified in the 1961 Hague Convention, or b) the Consulate (usually) of the country where the debtor is located.
- The appropriate authority affixes either the Consulate Stamp or Apostille to the document. It is then returned to the creditor, who forwards it to the firm/attorney handling the collection case.
States that have not signed the Convention must specify how foreign legal documents can be certified for its use. Some countries may have a special treaty concerning the recognition of each other’s documents, but usually this is not the case.
Usually, when the country issuing or receiving the document does not recognize an apostille, the document must be taken to the consulate of the foreign country. Before being accepted by the consular officer, it may need to be certified by the highest government official in the country where it originated, such as the Secretary of State or Minister of Foreign Affairs. This process is known as “chain authentication”. It is so called because it involves an unbroken chain of government officials each certifying the signature (and seal in some cases) of the prior official in the originating country. Finally, the consular officer then certifies that the document should be recognized as authentic in the country of destination. In most cases, the consular officer's signature can be authenticated in the country of destination as well.
In the United States
The United States has been part of the 1961 Hague Convention since October 15, 1981.
Documents destined for use in participating countries and their territories should be certified by an official in the jurisdiction in which the document has been executed. In the United States, apostilles are usually affixed by the Secretary of State in each US state or territory. It may be necessary for an intermediary official to affix a certification that the original signatory (notary or clerk) was authorized to sign the public document. A list of U.S. State Authentication Authorities is found on the U.S. Department of State web site.
Note: In the United States, fees for the apostille typically run between $5.00 and $25.00. We recommend that creditors first call the competent authority to determine the cost of legalization prior to sending the document to that authority. We also recommend that original Notarized or Legalized documents be transported only by courier to ensure their safety in transit.
Canada is not a party to the 1961 Hague convention and Canadian documents cannot be certified with an apostille. A combined process of "authentication" and "legalization" is the Canadian equivalent of "apostille certificates" issued in other countries that are signatories.
Authentication is handled by both the Department of Foreign Affairs and International Trade (DFAIT) and provincial authentication authorities, such as the Government of Ontario's Management Board Secretariat (Official Documents) or the Official Documents and Appointments branch of Alberta's Department of Justice. Whether DFAIT and the provincial authentication authority are both required to authenticate a document depends entirely on the requirements of the recipient foreign country. Advice should be sought from that country's embassy or consulate.
Authentication verifies the registration of a notary public as well as the notary's seal and signature. When a request is made, DFAIT and/or the provincial authentication authority checks its records to confirm the notary's registration. It then compares the notary seal and signature on the document being submitted against records it holds of the notary's seal and signature. When the notary's authority, signature, and seal are confirmed, the document to be authenticated receives a stamp (DFAIT) and/or an additional seal, together with a statement from the provincial authentication authority stating that the notary is "known to be in good standing". Once this process is completed, nothing may be added to or removed from the document.
After authentication, "legalization" occurs when the document is presented to the consulate of the relevant foreign country for certification. At that point, the document normally acquires legal validity in the intended country of use.
Treaty Obligations of Countries That Have Changed Status
According to the Hague Conference on Private International Law:
In accordance with Article 34(1) of the Vienna Convention on Succession of States in Respect of Treaties, the U.S. view is that when a country which is a party to a multilateral treaty or convention has dissolved, the successor state(s) inherit the treaty obligations of the former government, consistent with Article 34 of the Vienna Convention on Succession of States in Respect of Treaties.
However, as a practical matter, the custom is for depositaries to expect a notice of succession to confirm that the new entity is performing its treaty obligations. Many newly independent states may not actually be implementing such conventions at this time, in that they may not be performing the functions set forth in the Convention. We continue to work with these governments and the depositories to obtain confirmation that the respective successor state is complying with treaty obligations.
Keeping Track of Members
To find out which countries are parties to the Hague Legalization Convention check out the web site on the Internet for the Hague Conference on Private International Law for up-to-date information about recent accessions to the Convention.
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Disclaimer: The information in this article is not, nor is it intended to be legal advice. It is imperative that any action you take be done on the advice of competent legal counsel, and not based solely upon this article.
ABC-Amega Inc. has provided commercial receivables collection services since 1929 and collects in more than 200 countries worldwide, For further information, contact firstname.lastname@example.org.