Apostille

An apostille certifies where a public document comes from. Article 5 of the Hague Convention of 5 October 1961 says that, when properly filled in, the certificate will certify "the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which the document bears".

Those are three facts about the official who signed. The signature is genuine. The signer held the office stated, for example as a notary, a court clerk or a registrar. The seal or stamp belongs to that office. An authority abroad cannot know the signature of every foreign notary, so a designated authority in the document's home country confirms it.

Article 3 makes the apostille "the only formality that may be required" for this purpose between countries in the convention. Under Article 4 it is placed on the document itself or on a sheet attached to it, called an allonge, and it follows a model annexed to the convention. The title "Apostille (Convention de La Haye du 5 octobre 1961)" is always in French.

An apostille does not prove that the content of the document is true or that the document has legal effect. The list in Article 5 stops at the signature, the capacity and the seal.

Take a hypothetical power of attorney signed before a notary in one country for use in a share sale in another. The apostille tells the receiving side that the notary's signature is genuine. It does not tell them that the power covers the sale or that it is still in force. Those checks remain with the firm relying on the document.

An apostille also does not settle whether the document meets the receiving country's form requirements. Whether a foreign notary's deed is enough for a transaction is decided by that country's law.

Only public documents can receive an apostille. Article 1 of the convention applies it to public documents executed in one contracting state that have to be produced in another, and it names four groups:

• documents from an authority or official connected with the courts, including a public prosecutor, a court clerk or a process-server
• administrative documents
• notarial acts
• official certificates placed on documents signed by persons in their private capacity, such as a certificate recording that a document was registered or existed on a certain date, and official and notarial authentications of signatures

The fourth group matters most to firms. A contract, a board resolution or a power of attorney signed by private persons is not a public document. It reaches the apostille through an official certificate placed on it, typically a notary's authentication of the signature. The apostille then certifies the notary's signature, not the signature of the person who signed the contract.

Article 1 also excludes two kinds of document: those executed by diplomatic or consular agents, and administrative documents "dealing directly with commercial or customs operations".

A competent authority in the country the document comes from issues the apostille. Under Article 6, each contracting state designates "by reference to their official function" the authorities that may issue it. Which body that is differs from country to country, and it can differ by type of document.

The country of origin is the one that counts. A document notarised in one country receives its apostille there. Article 5 says the certificate is issued "at the request of the person who has signed the document or of any bearer". A law firm holding the document can therefore ask for it.

The chain ends there. Article 5 states that the signature, seal and stamp on the certificate itself "are exempt from all certification".

A recipient verifies an apostille by asking the authority that issued it. Article 7 requires each competent authority to keep "a register or card index" of the certificates it issues. The register records the number and date of each certificate, the name of the person who signed the public document and the capacity in which that person acted. For an unsigned document it records the authority that affixed the seal or stamp.

The same article gives the recipient a right to a check: "At the request of any interested person, the authority which has issued the certificate shall verify whether the particulars in the certificate correspond with those in the register or card index."

Some authorities issue apostilles in electronic form and keep registers that can be consulted online. Whether a particular authority does either is a matter to check with that authority.

Legalisation does. Article 2 of the convention defines it as "the formality by which the diplomatic or consular agents of the country in which the document has to be produced certify the authenticity of the signature", the capacity of the signer and any seal or stamp. It answers the same three questions as an apostille, but the destination country's own agents answer them. The document usually passes through authorities in the country of origin first and then through a consulate.

Some documents need neither. Article 3 says an apostille cannot be required where the law or practice of the receiving country, or an agreement between states, has abolished or simplified the formality. Within the European Union, Regulation (EU) 2016/1191 removes the apostille requirement for certain public documents between member states. Check whether the document in question is one of them. Before ordering an apostille, ask the receiving authority what it requires.