International Forum on e-Notarization and e-Apostilles HCCH – IULN – NNA 30–31 May 2005, Las Vegas Christophe Bernasco

1. General framework and operation of the Apostille Convention now and in future: from a paper-based to an electronic environment International Forum on e-Notarization and e-Apostilles HCCH – IULN – NNA 30–31 May 2005, Las Vegas Christophe Bernasconi First Secretary, HCCH

2. The Hague Apostille Convention • Main purpose: to facilitate circulation of public documents issued by a State Party to the Convention and to be produced in another State Party to the Convention • Replaces the cumbersome and frequently costly formalities for legalisation of a public document with the mere issuance of an Apostille certificate by the competent authorities of the State in the territory of which the document has been issued • Currently 87 Contracting States • See “Apostille Homepage” at www.hcch.net

3. Effects of an Apostille • The ONLY effect of an Apostille is to certify the authenticity of the signature, the capacity in which the person signing the document has acted, and where appropriate, the identity of the seal or stamp which the document bears • Apostille does NOT relate to the content of the underlying document itself

4. Model Apostille Certificate

5. Public Documents (Art. 1) • Birth, Death, Marriage Certificates • Documents issued by a Court or Tribunal • Notarial Acts • Patents • Extracts from Commercial Registers • Diplomas • Broad interpretation

6. How does it work?

7. PUBLIC DOCUMENT IN PAPER FORM ISSUING Authority • Record in REGISTER or CARD INDEX: • number and date of certificate • name/capacity person • name of authority seal/stamp Requesting Person State of Origin COMPETENT AUTHORITY to issue Apostilles APOSTILLE IN PAPER FORM Requesting Person Requesting Person Authority or person presented with Apostille Receiving State Public document bearing Apostille may produce effects in receiving State 1

8. Possible scenarios involving “e-technology”

9. PUBLIC DOCUMENT IN PAPER FORM ISSUING Authority Requesting Person State of Origin Record in e-REGISTER COMPETENT AUTHORITY to issue Apostilles APOSTILLE IN PAPER FORM Requesting Person Requesting Person Authority or person presented with Apostille Receiving State Public document bearing Apostille may produce effects in receiving State 2

10. PUBLIC DOCUMENT IN PAPER FORM ISSUING Authority Requesting Person scans the paper document(s) and sends electronic copy State of Origin Record in(e-)REGISTER or CARD INDEX APOSTILLE IN PAPER FORM ? COMPETENT AUTHORITY to issue Apostilles Requesting Person Requesting Person Authority or person presented with Apostille Receiving State Public document bearing Apostille may produce effects in receiving State 3

11. PUBLIC DOCUMENT IN PAPER FORM but there is an electronic copy ISSUING Authority Requesting Person sends electronic copy State of Origin Record in (e-)REGISTER or CARD INDEX APOSTILLE IN PAPER FORM COMPETENT AUTHORITY to issue Apostilles ? Requesting Person Requesting Person Authority or person presented with Apostille Receiving State Public document bearing Apostille may produce effects in receiving State 4

12. PUBLIC DOCUMENT IN PAPER FORM but there is an electronic copy ISSUING Authority Requesting Person presents both paper original and electronic copy State of Origin Record ine-REGISTER ELECTRONICAPOSTILLE COMPETENT AUTHORITY Requesting Person Certification Authority Register of Certification Authority Requesting Person Authority or person presented with e-Apostille Receiving State ElectronicPublic document bearing e-Apostille may produce effects in receiving State 5

13. Certification Authority ISSUING Authority PUBLIC DOCUMENT IN ELECTRONIC FORM but capable of being reproduced in tangible form Register of Certification Authority Requesting Person sends electronic copy State of Origin Record in e-REGISTER or CARD INDEX ELECTRONICAPOSTILLE COMPETENT AUTHORITY Requesting Person Certification Authority Register of Certification Authority Requesting Person Authority or person presented with e-Apostille Receiving State ElectronicPublic document bearing e-Apostille may produce effects in receiving State 6

14. PUBLIC DOCUMENT • on paper only and subsequently scanned by issuing authority (with e-signature), or • on paper but there is an electronic copy (with e-signature), or • in electronic form only but “capable of being reproduced in tangible form” (with e-signature) Certification Authority ISSUING Authority Register of Certification Authority Requesting Person sends electronic copy State of Origin COMPETENT AUTHORITY ELECTRONICAPOSTILLE Record in e-REGISTER or CARD INDEX Certification Authority Register of Certification Authority Requesting Person Requesting Person Authority or person presented with e-Apostille Receiving State Electronic Public document bearing e-Apostille may produce effects in receiving State 7

15. e-Register than can be accessed on-line (would promote importance of register and provide deterrent to fraud) Use IT in issuing paper Apostilles! Issuing e-Apostilles (for public documents received in paper form but subsequently scanned by competent authority, and for public documents received in electronic form) Possible under current text and form of the Convention! Conclusions (I)

16. Protection against unauthorised modifications (non-repudiation) essential Not require use of one specific technology Not privilege use of one specific technology over another Does not make concept of Apostilles superfluous! Conclusions (II)

17. Questions? Christophe Bernasconi cb@hcch.nl