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International: Electronic Apostille Program Developments

(Mar. 16, 2017) From November 2-4, 2016, the Hague Conference on Private International Law (HCCH) held a Special Commission meeting to review the practical operation of the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents. Better-known as the Apostille Convention, this international instrument entered into force on January 24, 1965, and currently has 113 Contracting States.  (Status Table: Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, HCCH website (last visited Feb. 22, 2017).)

Public documents frequently need to be used abroad, but before such documents can be utilized in another country, their origin must be authenticated. The traditional method employed by countries that are not members of the Apostille Convention is called legalization, and is often a slow and costly process. (ABCS OF APOSTILLES: HOW TO ENSURE THAT YOUR PUBLIC DOCUMENTS WILL BE RECOGNIZED ABROAD, HCCH website (2010).) To avoid the operational costs associated with legalisation, Contracting States to the Apostille Convention agreed to reduce the authentication process to a single formality — issuance of a certificate of authentication (apostille) by a competent local authority, depending on the nature of the public document involved. (Id.; APOSTILLE HANDBOOK: A HANDBOOK ON THE PRACTICAL OPERATION OF THE APOSTILLE CONVENTION (2013), at xviii, HCCH website).)

As part of its review, the 2016 Special Commission unanimously approved 22 conclusions and recommendations.  Furthermore, Annex I to the Commission’s “C&Rs,” contains the conclusions  and recommendations of the 10th International Forum on the Electronic Apostille Program (e-APP). (Conclusions & Recommendations of the Special Commission on the Practical Operation of the Apostille Convention (C&R), HCCH website (last visited Feb. 22, 2017); 10th International Forum on the Electronic Apostille Program (E-APP), HCCH website (last visited Feb. 22, 2017).)

Over 200 competent authorities from 29 Contracting States have to date implemented one or both components of the e-APP program. (10th International Forum on the Electronic Apostille Program (E-APP), supra.)  The program promotes the use of electronic apostilles and the operation of electronic registers of apostilles that can be accessed online by recipients to verify the origin of the apostille. (APOSTILLE HANDBOOK supra, at 10-11.)

E-Apostille Component           

The e-apostille component of the e-APP program involves the use of a digitally signed electronic file that is transmitted by electronic means, such as e-mail, or is otherwise made available for download or viewing from a website. (The e-APP and International Fora: Progress Made and Outcomes to Date (Nov. 1, 2016), HCCH website.)  This electronic file contains an electronic apostille certificate attached to either an original electronic public document or a paper document that has been previously scanned.  (Id.)  The e-apostille may be attached by incorporating the e-apostille and the public document into a single PDF document, or by attaching the e-apostille to the public document as a separate file.  (APOSTILLE HANDBOOK supra, at 63.)

Benefits of the use of the e-apostille component include non-expiration of e-apostilles, which continue to be valid even after the digital certificate of the person signing the e-Apostille expires; an easy and secure method of attaching apostilles to the underlying public document, as required by the Convention; and a decrease in the possibility of fraud associated with the attachment of traditional paper apostilles. (The e-APP and International Fora: Progress Made and Outcomes to Date, supra; APOSTILLE HANDBOOK, supra, at 63.) In addition to combatting fraud and reducing the operational costs associated with paper apostilles, e-apostilles can be freely used with paper public documents that are subsequently scanned and digitized. (10th International Forum on the Electronic Apostille Program (e-APP), supra, C&R No. 11.) This brings the Apostille Convention in tune with the growing trend among government authorities to execute and make public documents available in electronic format. (APOSTILLE HANDBOOK, supra, at 10-11.)

Additionally, e-apostilles transmitted or stored for verification offer the only viable solution for apostillising electronic public documents in their original format. (10th International Forum on the Electronic Apostille Program (e-APP), supra, C&R No. 9.)

E-Register Component

The second part of the e-APP program is the e-Register component. E-Registers are electronic registers that are accessible online to enable the recipients to readily verify the origin of the apostille they have received. (APOSTILLE HANDBOOK, supra, at 78.) E-Registers enable recipients to verify electronic and paper form apostilles.  (Id.)

All of the information in the e-Registers is stored securely. Some of the successful security measures employed by the Contracting States to date include provision of a URL with a unique identifier or use of a Quick Response (QR) code.  (10th International Forum on the Electronic Apostille Program (e-APP), supra, C&R No. 31.)  Users of the e-Register also may be prompted to enter a randomly generated word to ensure that the user accessing the information is not a computer.  (Id.)  Furthermore, participants at the 10th International Forum encouraged authorities participating in the e-App program to use an SSL [Secure Sockets Layer] Certificate or similar technology, for third-party verification that a given e-Register website in fact belongs to the competent authority of a Contracting State.  (Id., C&R No. 32; What Is SSL?, GLOBAL SIGN (last visited Mar. 13, 2017).)

Implementing the e-APP Program

Each e-APP program component may be implemented independently. (The e-APP and International Fora: Progress Made and Outcomes to Date, supra.)  An implementation chart indicating the competent authorities of each Apostille Convention Contracting State and the date on which (if applicable) they have implemented either or both of the e-APP components is available on the HCCH website.  (Implementation Chart of the e-APP, HCCH website (last visited Feb. 22, 2017).)

The Special Commission predicted that interest in the Apostille Convention and the e-APP program will continue to increase, with many more accessions to the Convention expected and further implementation of the e-APP program envisaged. (10th International Forum on the Electronic Apostille Program (e-APP), supra.) Since 2014, Australia, Austria, Brazil, Chile, Romania, Tajikistan, and one state of Mexico (Baja California Sur) have joined the e-APP program. (Id., C&R No. 1.)

Prepared by Alexander Janvelian, Law Library Extern, under the supervision of Peter Roudik, Director of Legal Research.