On 7 November 2023, the Convention Abolishing the Requirement of Legalization for Foreign Public Documents (a.k.a. “Apostille Convention”, dating from 1961) came into effect in China. As many businesses and individuals know, outside China, apostilles have long afforded relatively straightforward authentication of official documents from one country to be used in governmental procedures in another country. Now, China has adopted this authentication in place of the country’s hitherto unique and comparatively burdensome requirements.
Parties benefit from using apostilles in numerous contexts. For example, even establishing or making certain changes to a business entity, or carrying out certain types of commercial transactions, requires authenticated documents (e.g., certificates of incorporation for corporate parents, identity documents, and powers of attorney): such documents previously had to pass through China’s special “legalization” process, but some (if not all) now can instead just be apostilled – which takes less time, involves lower costs, and is more familiar to most parties. More information about such benefits and background to the Apostille Convention’s adoption in China can be read about in DaHui’s newsletter of 16 March 2023. Here below, this newsletter will focus on the benefits of apostilles to parties involved in PRC court proceedings.
Legalization for China Litigation
To file a lawsuit in China, or to make a formal appearance to respond, the litigant must generally submit several documents alongside its complaint or response: one or several identity-related document(s) and, if represented by counsel, a power of attorney. For an individual, a passport copy usually satisfies all the requirements for identification, while a corporate party generally needs to submit copies of a company registration document and one or several document(s) establishing the identity and authority of the company’s representative (e.g., a director or “legal representative”). For foreign litigants, PRC courts only accept authenticated copies of these documents.
For authentication, until 7 November 2023, PRC law and practice required the document to undergo a “certification” process by notaries and/or government organs in the country of the document’s origin, and then “legalization” by a Chinese embassy or consulate in the same country.[1] The legalization process took at least several days, often weeks, and occasionally months, and cost up to approx. USD 50 per document (or more if “rush” service was available); moreover, officials at the embassy or consulate often raised singular objections or requirements (e.g., objecting to mention of “Hong Kong” not followed by “PRC”, or requiring translations), sometimes even raising questions about the substantive content of documents, resulting in frustrations, delays, and in rare instances impossibility to authenticate documents.[2]
In short, the certification and legalization requirements and process for litigation in China have long meant that parties often had to wait weeks or months just to initiate (or respond to) their cases, suffer through bureaucratic nightmares, and on rare occasions even abandon or alter their plans. This framework could also interfere with later stages of litigation, since some other documents (including certain kinds of evidence) from abroad needed to satisfy the same requirements and process.
