Businesses may need to present corporate documents in foreign countries for a variety of reasons, including opening bank accounts, establishing legal entities, completing transactions, or satisfying regulatory requirements. While these documents may be valid in the United States, foreign authorities often require additional certification before they will be accepted.
As you seek to obtain compliance with this document certification process, a business entity will need to understand the correct process for authenticating relevant documents. There are two paths to accomplish this—the process for obtaining apostilles and the process of authentication, where an apostille cannot be used.
What is an apostille?
An apostille is a certificate issued by a government authority that verifies the authenticity of a public official's signature, seal, or capacity on a document so that a copy of the document can be accepted in another country that is a party to the 1961 Hague Convention Treaty.
The Hague Apostille Convention (formally known as the Convention of October 5, 1961, Abolishing the Requirement of Legalisation for Foreign Public Documents) is an international treaty that simplifies the international exchange of documents by providing trustworthy authentication. A list of the countries that are Hague Convention members can be found on the Hague Convention’s website.
In the United States there are several designated authorities who can issue apostilles. They are referred to as “competent authorities”. The competent authority depends upon the origin of the document being authenticated. For state documents – which would generally include corporate documents - that authority will be the Secretary of State (or equivalent state office). For federal documents, the authority is the U.S Department of State Office of Authentications.
How do I obtain an apostille for my corporate documents?
The steps required to obtain an apostille for corporate documents, such as articles of incorporation/organization, a certificate of good standing, or other documents on file with the Secretary of State (or equivalent business entity filing office) in general, are the following:
- Obtain a certified copy of the corporate document from the Secretary of State (or equivalent filing office) in its role as filing office in the formation state.
- Submit an original of the certified copy along with a request for an apostille to the Secretary of State (or equivalent office) in its role as competent authority. Originals are generally required. Copies may be rejected. Include a return envelope. In general, a request for an apostille can be submitted by mail or in person. (Check with the state to be sure). A few states have e-apostilles - which can be delivered digitally.
- The fees charged vary by state as do the turnaround times for receiving the apostille
- The Secretary of State will review the documents and if the authenticity of the signature and official position of the person certifying the corporate document is validated, will return the document with the apostille attached.
- In general, once you receive the corporate documents with the apostille attached, you are ready to use the documents in the foreign country. No further authentication is necessary.
This is the general procedure. You may want to check with the appropriate competent authority to see any specific details they may have.
What is authentication?
If an entity is intending to establish a business presence in a country that doesn’t participate in The Hague Apostille Convention, then it must follow a more complex process, sometimes referred to as authentication and legalization, for validating corporate documents.
What is the authentication process for corporate documents?
The process begins in a similar manner to obtaining an apostille. A certified copy of the corporate document must be obtained and the state competent authority (Secretary of State in general) must validate the authenticity of the signature, seal, and official position of the person certifying the corporate document. However, instead of requesting an apostille from the state authority, a request for an authentication certificate is requested.
Unlike with an apostille, this is not the last step. Additional steps are required. In general, further authentication (e.g., legalization) is required by the foreign country’s embassy or consulate in the United States. The U.S. Department of State may also be required to provide a certificate of authentication. If so, the Department’s Office of Authentications has its own set of requirements that must be followed.
It’s important to recognize that the specific requirements for non-Hague Convention countries can vary and it is best to check with the proper government authorities of that country to determine what is required. Checking with the country’s embassy or consulate can be a good first step.
Are apostilles and authentications interchangeable?
Authentications and apostilles are not interchangeable and the correct process must be followed and proper certificates submitted. Making the wrong choice could result in a document being rejected by the foreign country.
Because apostilles and authentication procedures take time (in some instances processing times can take several weeks) and may require in-person visits to consulates and embassies where a non-Hague Apostille Convention country is involved, understanding the requirements of the country into which you’re expanding is essential.
The process can be a tedious exercise in due diligence. For example, all documents must be original and complete; no copies are allowed. If other documents or annexes are referred to, they must be attached for review. Furthermore, if a document needs translation, a sworn translator or legalized translation may be required by the foreign authority.
Companies may also have to hand over documents to an unknown authority for what could be some time. Proper planning must be factored in to ensure other areas of the business aren’t impacted by the loss of control of these documents.
Due diligence must also be exercised if a company is using documents issued by one non-U.S. country in another non-U.S. country. For example, in one instance, the Chinese embassy in India required a business owner to use a certain type of paper and requested the original passport of the signor. Others may require a driver’s license as evidence of identification.
Finally, no notary is the same. The function of notaries is different from country to country. So if the corporate document needs to be notarized (which can be required when the document is not one in which a certificated copy from the filing office can be obtained), any nuances this may bring to the apostilles and authentication process should be considered.
These may seem like small details, but if even one step or requirement is missed in the process it could delay the ability to start a global endeavor.
Conclusion
Navigating the complexities of obtaining apostilles for corporate documents being used in Hague Apostille Convention countries and in authenticating corporate documents for use in non-Hague countries is essential to ensure global success. As such, it’s important to plan for what can be a time-consuming and frustrating process. This may be unfamiliar territory for many companies. In which case, it may be beneficial to use a legal services provider.