Published 16 October 2020, The Daily Tribune
Persons doing cross-border transactions are almost often faced with the challenge with respect to the procurement and authentication of public documents from international jurisdictions, as the same can take extra effort and time. A typical example would be an overseas Filipino worker (OFW) who wishes to sell his/her real property situated in the Philippines. While the sale documents may be signed in counterparts, the execution of a contract of sale signed and notarized by an OFW overseas would not be sufficient to be recognized in the Philippines. In cases like this, authentication of the foreign public document is required.
Prior to 14 May 2019, the whole authentication procedure of public documents for use abroad involves two certifications — authentication and legalization. The first comes in a form of an authentication certificate (or “red ribbon”) which serves to certify the origin of the public document to which it relates and certifies the authenticity of the signature or seal of the person or authority that signed or sealed the public document and the capacity in which this was done. The authentication of public document is done by the country where the said document originated.
After authentication comes the requirement of legalization. Legalization has essentially the same purpose as authentication — it authenticates or certifies a legal document, only that legalization is done by the receiving country, or the country to which the authenticated public document will be used.
Thus, a public document executed or issued overseas needs to be authenticated by the competent authority in the country of origin and legalized before the Philippine embassy or consular office located in the document’s country of origin, before the same can be recognized and used in the Philippines. In the same way, a public document executed or issued in the Philippines has to be authenticated by the Department of Foreign Affairs and legalized by foreign embassy of the receiving country in the Philippines before the said document may be recognized in the receiving country.
The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (Apostille Convention) is a multilateral treaty which was first enforced in 1965. Said treaty eliminated the foreign document legalization requirements to streamline the authentication procedure of documents for use overseas thereby making the same more convenient, less costly, and less time-consuming.
An Apostille is a certificate that usually supplements a local notarization and authenticates the origin of a public document. It is issued by a country that is a party to the Apostille Convention to certify a public document to be used in another country which is also a party to the Convention.
The Philippines acceded to the Apostille Convention last 12 September 2018 and officially became a party thereto last 14 May 2019. In the Philippines, the Department of Foreign Affairs —Office of Consular Affairs issues the Apostille.
With the Apostille Convention in force in the Philippines, a foreign public document will only need to be authenticated or Apostilized by the competent authority in the foreign state in order to be recognized and used in the Philippines. Conversely, documents executed and notarized in the Philippines or issued by Philippine government agencies only need to be Apostilized by the Department of Foreign Affairs in order to be used overseas. Once Apostilized, a public document can be validly used in any and all Apostille Countries, save for some exceptions.
As previously mentioned, the Apostille Convention only applies if both the country where the public document was issued and the country where the public document is to be used are parties to the Convention. However, note that, even if the receiving country is a party to the Convention, the Apostille may not be recognized by the said receiving country if it raised an objection to the accession of the State of origin of the public document under Article 12 of the Apostille Convention.
Having said this, Philippine Apostille will not apply to countries that have not yet acceded to the Apostille Convention as well as to Austria, Finland, Germany and Greece (which objected to the accession of the Philippines to the Convention). Documents from and to such countries will still require legalization by the concerned embassy or consulate.
It must be noted that an Apostille only certifies the origin of the document, the authenticity of the signature or seal of the person appearing therein, and his/her capacity, but does not validate the contents of the public document. Further, Apostilles are strictly for the use of public documents abroad. In relation to this, Article 1 of the Apostille Convention provides that the following are deemed to be public documents: a) documents emanating from an authority or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process-server (huissier de justice); b) administrative documents; c) notarial acts; and d) 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. Meanwhile, the Convention expressly states that it does not apply to: a) to documents executed by diplomatic or consular agents; and b) to administrative documents dealing directly with commercial or customs operations.
The updated list of all Apostille Countries can be accessed through this link: https://www.hcch.net/en/instruments/conventions/status-table/?cid=41
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