The Apostille in the 21st Century: International Document Certification and Verification

By Adams, James W., Jr. | Houston Journal of International Law, Summer 2012 | Go to article overview

The Apostille in the 21st Century: International Document Certification and Verification


Adams, James W., Jr., Houston Journal of International Law


I.    INTRODUCTION

II.   THE APOSTILLE IN ITS VARIOUS FORMS AMONGST
      SIGNATORY STATES
      A. General Overview
      B. Apostille Practices of the Various Nations

III.  THE PROBLEM OF FRAUDULENT DOCUMENTS ABUSING
      THE HAGUE CONVENTION

IV.   ELECTRONIC APOSTILLIZATION

V.    ELECTRONIC NOTARIZATION IN THE UNITED STATES
      A. The Proposed Solution to the Electronic
         Notarization Problem
      B. The MNA and Foreign Languages

VI.   ELECTRONIC NOTARIZATION AS A MEANS TO LIMIT
      PRODUCTION OF FRAUDULENT DOCUMENTS

VII.  CONCLUSION

VIII. APPENDIX (STATE ELECTRONIC NOTARIZATION LAWS)
      A. Alaska
      B. Arizona
      C. California
      D. Colorado
      E. Delaware
      F. Florida
      G. Illinois
      H. Kansas
      I. Michigan
      J. Minnesota
      K. Nevada
      L. New Mexico
      M. North Carolina
      N. Pennsylvania
      O. Texas
      P. Utah
      Q. Virginia

I. INTRODUCTION

An apostille (hereinafter "Apostille") is a standard certification provided under the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents ("Hague Apostille Convention") for authenticating documents used in foreign countries. (1) Apostilles are used frequently to certify various energy industry-relevant documents, such as oil and gas leases, purchase and sale contracts, joint operating agreements, drilling contracts, supply contracts, pay orders, field-wide operating agreements, confidentiality agreements, employment records, and even diplomas. (2)

Under the Hague Apostille Convention, the Apostille is attached to documents produced in one nation state, which will be certified, or apostillized, in order to be presented to the government (or court) of another state. (3) Four types of documents are mentioned in the Hague Apostille Convention: (1) court documents; (2) administrative documents, e.g. civil status documents; (3) notarial acts; and (4) official certificates, which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures. (4)

Apostilles are affixed by "Competent Authorities" designated by the government of a state which is party to the convention. A list of these authorities is maintained by the Hague Conference on Private International Law. Generally, designated authorities include government ministries, embassies, lawfully constituted courts and local governments. (5) To be eligible for an Apostille, a document must first be issued or certified by an officer recognized by the authority that will issue the Apostille. (6) The Apostille certificate includes the ten elements of apostillization. The Apostille certificate may be a stamp or printed form consisting of ten numbered standard fields. (7) At the head of the certificate is the title APOSTILLE, followed by the required numbered fields. (8)

The information may be placed on the document itself, including the reverse or back of the document, or the information may be attached to the document as an allonge, or piece of paper affixed to the document. (9)

Apostille is derived from French law, meaning postscript or note. (10) The effect of affixing an Apostille to a document is to certify authenticity of the signature of the official who signed the document as true for recipients in another signatory nation. (11) Apostilles have been compared to notarization certificates; although notary certificates appear to be similar, the legal effects are much different, as will be discussed.

This Article (1) generally discusses the Apostille; (2) outlines the current practices of apostillizing documents in selected countries, such as France, Germany, Mexico, Argentina, China, India, South Africa, Japan, the United States, and the United Kingdom; (3) addresses a prevalent problem that has arisen, i. …

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