China has acceded to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents

On 8 March 2023, the People's Republic of China (the "PRC") has (finally!) acceded to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (the "Convention").

The Convention between the PRC, as the acceding state, and other member states (which will not have raised an objection; see below) will enter into force as of 7 November 2023.

This constitutes a long-awaited and very positive development.

1. General

- So far, the PRC has not been a contracting state of the Convention.

Consequently, it was and currently still is not sufficient to affix an apostille on foreign public documents for use in the PRC or on Chinese public documents for use overseas. Instead, a full notarization and legalization procedure was and currently still is required to be conducted in the respective country from which the documents originate. Such a legalization procedure usually ends, in a foreign country, with the legalization by a Chinese Consulate or the Chinese Embassy in the respective foreign country where the document has its origin and, in China, with the legalization by a competent Foreign Affairs Office of provinces, autonomous regions and municipalities directly under the PRC's Central Government.

For example, for the establishment or the acquisition of companies within the PRC by foreign investors as well as in case of subsequent relevant changes regarding the foreign investor itself, a legalized certificate of incorporation / commercial register excerpt of the foreign investor was and currently still is required to be submitted to competent PRC authorities.

The legalization procedure is normally complex and time-consuming. For example, in Germany, the required steps are currently as follows: (i) the foreign public document must be authenticated by a competent authority (e.g. the commercial register) or be notarized by a notary public in Germany, (ii) then be authenticated by the District Court (Landgericht) in charge of the authority or the notary public in Germany, (iii) then be authenticated by the Federal Agency for Foreign Affairs (Bundesamt für Auswärtige Angelegenheiten; BfAA) in Germany, and (iv) then be legalized by a Chinese Consulate or the Chinese Embassy in Germany. The whole procedure is complex and time-consuming. It usually takes several weeks. Currently, the authentication by the BfAA alone usually takes up to around 6 weeks.

- However, this will change considerably as of 7 November 2023, when the Convention between the PRC and other contracting states (which will not have raised an objection; see below) will enter into force.

The Convention mainly has the purpose to simplify the complex legalization procedure by replacing it with a certification called an "apostille". Such an apostille is issued by authorities designated by the state of origin of the respective document.

Compared with the complex legalization procedure, obtaining an apostille is much simpler and takes considerably less time. For example, in Germany, an apostille can, depending on the respective document to be apostilled, often be obtained within 3 to 10 working days.

2. Specifics on the PRC's Accession to the Convention

- In accordance with Article 12, 2^nd paragraph, of the Convention, the PRC's accession will have effect only with regard to the relations between the PRC and those contracting states which will not have raised an objection to the PRC's accession in the 6-month period after receipt of the notification of the PRC's accession. This 6-month period will end on 8 September 2023.

- The Convention will, in accordance with its Article 12, 3^rd paragraph, enter into force between the PRC and the other contracting states, which have not raised an objection to its accession, on 7 November 2023.

- Further, the PRC made the following declarations regarding its accession to the Convention:

• The PRC Government designated the Ministry of Foreign Affairs of the PRC as the competent authority to issue the certificates referred to in the 1^st paragraph of Article 3 of the Convention, i.e. the apostilles.
  Unless otherwise stated by the PRC Government, the Ministry of Foreign Affairs of the PRC issues the certificates to public documents originated in the territory of the PRC. Authorized by the Ministry of Foreign Affairs, the Foreign Affairs Offices of provinces, autonomous regions and municipalities directly under the PRC's Central Government can issue apostilles to public documents originated within the respective administrative areas.
• The Convention will not be applicable between the PRC and those contracting states that the PRC does not recognize as sovereign states.
• The PRC Government has decided that the Convention will continue to apply to the Hong Kong Special Administrative Region and the Macao Special Administrative Region.
• The declaration made by the PRC Government that "the Convention will not be applicable between the PRC and those contracting states that the PRC does not recognize as sovereign states" applies to the Hong Kong Special Administrative Region and the Macao Special Administrative Region. I.e., the Convention does not apply between the PRC and the Hong Kong Special Administrative Region and the Macao Special Administrative Region.

3. Conclusion

In conclusion, the PRC's accession to the Convention has been long awaited since decades and is a very positive development. It is expected that it will make the obtaining of foreign public documents of a contracting state of the Convention for use in the PRC and, vice versa, of Chinese public documents for use in a contracting state of the Convention considerably simpler and much less time-consuming. This would bring advantages for foreign investors engaged in the PRC and Chinese investors engaged in a contracting state of the Convention and significantly reduce administrative efforts.

However, with regard to the practical impact for specific countries, it must still be awaited whether, and if so which, contracting states of the Convention will raise an objection to the PRC's accession until 8 September 2023.