International Forum on

1. JEFF TALPISLEGAL AND TECHNICAL QUESTIONSARISING FROM THE USE OF INFORMATION TECHNOLOGIES UNDER THE HAGUE APOSTILLE CONVENTION International Forum on e-Notarization and e-ApostillesHCCH – IULN – NNA30–31 May 2005, Las Vegas

2. The presentation will focus on certain legal and technical issues arising from the use of information technologies under the Hague Apostille Convention ,which essentially break down into two general questions:

3. Does the Convention in its present form allow for the issuance of an Apostille for documents established or recorded electronically? and • Does the Convention in its present form permit the issuance of electronic Apostilles and electronic registers

4. These general questions have been broken down into four headings: 1. Scope of the Convention and the Functional Equivalent Approach 2. Impact of an Electronic Public Document on the Convention

5. 3. Impact of Electronic apostilles on the Convention 4. Need for a Revision of the Convention, addition of a protocol-or will mere Explanatory Notes suffice ?

6. I. SCOPE OF THE CONVENTION AND FUNCTIONAL EQUIVALENCE APPROACH

7. I. SCOPE OF THE CONVENTION AND FUNCTIONAL EQUIVALENCE APPROACH (1) Do the references in the Convention to “signature”, “document”, “bearer” of document, “territory” of a Contracting State, “allonge”, “card index” not imply restrictions on the use of computer-based information and electronic signatures?

8. I. SCOPE OF THE CONVENTION AND FUNCTIONAL EQUIVALENCE APPROACH (2) Is it necessary for Contracting States to formally adopt the “functional equivalence approach” so as to ensure the legal value of documents and signatures regardless of the medium used?

9. I. SCOPE OF THE CONVENTION AND FUNCTIONAL EQUIVALENCE APPROACH (3) In assessing the operation of the Convention in an electronic environment, is there a need to define a territorial connection for electronic public documents?

10. I. SCOPE OF THE CONVENTION AND FUNCTIONAL EQUIVALENCE APPROACH (4) As regards the specific case of on-line diplomas, in which territory are they executed or issued?

11. I. SCOPE OF THE CONVENTION AND FUNCTIONAL EQUIVALENCE APPROACH (5) Do certifications by notaries that an electronic reproduction of a document (by way of copying, scanning, faxing or otherwise) is a true copy fall within the scope of the Convention’s definition of a “public document”?

12. I. SCOPE OF THE CONVENTION AND FUNCTIONAL EQUIVALENCE APPROACH (6) Should there be a uniform definition for electronic signatures for the purpose of the Convention or should it be left to each State to determine whether or not an electronic signature is equivalent to a handwritten signature?

13. II. IMPACT OF AN ELECTRONIC PUBLIC DOCUMENT ON THE CONVENTION

14. II. IMPACT OF AN ELECTRONIC PUBLIC DOCUMENT ON THE CONVENTION (7) Is it necessary under the internal laws of Contracting States that proof may be made of writings drawn up in a medium based on information technology in the same way as a writing drawn up as a paper document?

15. II. IMPACT OF AN ELECTRONIC PUBLIC DOCUMENT ON THE CONVENTION (8) Should the laws of Contracting States ensure the integrity of the public document and provide legal and technical criteria for the purposes of the Convention?

16. II. IMPACT OF AN ELECTRONIC PUBLIC DOCUMENT ON THE CONVENTION (9) Where conservation of the original public document is required, should special measures be adopted for the conservation of electronic documents?

17. II. IMPACT OF AN ELECTRONIC PUBLIC DOCUMENT ON THE CONVENTION (10) Does the Convention allow for issuance of an Apostille on an electronic version or copy of a paper public document? If so, under what conditions?

18. II. IMPACT OF AN ELECTRONIC PUBLIC DOCUMENT ON THE CONVENTION (11) Does the Convention authorise a State to refuse to issue an Apostille on an electronic version or copy of a paper public document for reasons of public policy?

19. II. IMPACT OF AN ELECTRONIC PUBLIC DOCUMENT ON THE CONVENTION (12) Does the Convention allow for issuing an Apostille on electronic public documents? If so, under what conditions?

20. II. IMPACT OF AN ELECTRONIC PUBLIC DOCUMENT ON THE CONVENTION (13) Does the Convention authorise a State to refuse to issue an Apostille on electronic public documents for reasons of public policy?

21. II. IMPACT OF AN ELECTRONIC PUBLIC DOCUMENT ON THE CONVENTION (14) What is the legal value of a printed electronic copy of an apostillised public document?

22. II. IMPACT OF AN ELECTRONIC PUBLIC DOCUMENT ON THE CONVENTION (15) Should there be precise minimum security measures under the Convention for the transmission of electronic public documents and electronic Apostilles?

23. III. IMPACT OF ELECTRONIC APOSTILLES ON THE CONVENTION

24. III. IMPACT OF ELECTRONIC APOSTILLES ON THE CONVENTION (16) Taking into account that the legal effect of electronic signatures depends on reliability, which in turn depends partly on international standards, in order to ensure cross-border recognition of the legal effects of electronic signatures and electronic Apostilles should there not be minimum criteria of technical reliability set forth?

25. III. IMPACT OF ELECTRONIC APOSTILLES ON THE CONVENTION (17) Should there be established standards of conduct to be respected by the certification authorities and the competent authorities?

26. III. IMPACT OF ELECTRONIC APOSTILLES ON THE CONVENTION (18) What should be the format for the electronic Apostille?

27. III. IMPACT OF ELECTRONIC APOSTILLES ON THE CONVENTION (19) How can the link between the electronic public Act and the electronic Apostille be guaranteed?

28. III. IMPACT OF ELECTRONIC APOSTILLES ON THE CONVENTION (20) May a State designate one authority to issue e-Apostilles and another to issue paper Apostilles?

29. III. IMPACT OF ELECTRONIC APOSTILLES ON THE CONVENTION (21) Should there not be specific requirements for the establishment, consultation and control of electronic registers?

30. III. IMPACT OF ELECTRONIC APOSTILLES ON THE CONVENTION (22) Are all States in a position to apply the principle of media neutrality, i.e. equipped to receive and to issue electronic public documents and electronic Apostilles?

31. IV. NEED FOR A REVISION OF THE CONVENTION, ADDITION OF A PROTOCOL – OR WILL MERE EXPLANATORY NOTES SUFFICE?

32. IV. NEED FOR A REVISION OF THE CONVENTION, ADDITION OF A PROTOCOL – OR WILL MERE EXPLANATORY NOTES SUFFICE? • It seems that the Convention is adaptable to the new technologies without the need of a formal revision thereof.

33. IV. NEED FOR A REVISION OF THE CONVENTION, ADDITION OF A PROTOCOL – OR WILL MERE EXPLANATORY NOTES SUFFICE? • The broad terms used in the Convention and its spirit should be able to take into account the technological evolution and permit the issuance of electronic Apostilles more rapidly, efficiently and less costly than the issuance of paper Apostilles.

34. IV. NEED FOR A REVISION OF THE CONVENTION, ADDITION OF A PROTOCOL – OR WILL MERE EXPLANATORY NOTES SUFFICE? • However, in order to guaranty the adaptation of the Convention to the electronic environment one can envisage at least three approaches:

35. IV. NEED FOR A REVISION OF THE CONVENTION, ADDITION OF A PROTOCOL – OR WILL MERE EXPLANATORY NOTES SUFFICE? • (1) Negotiate a Protocol providing that: • “The Interpretation of this Convention, where applicable, shall take into consideration:

36. IV. NEED FOR A REVISION OF THE CONVENTION, ADDITION OF A PROTOCOL – OR WILL MERE EXPLANATORY NOTES SUFFICE? (1) The Model Law adopted by the United Nations Commission on International Trade Law on Electronic Commerce of 1996 and the Guide for its Incorporation;

37. IV. NEED FOR A REVISION OF THE CONVENTION, ADDITION OF A PROTOCOL – OR WILL MERE EXPLANATORY NOTES SUFFICE? (2) The Model Law adopted by the United Nations Commission on International Trade Law on Electronic Commerce of 1996 and the Guide for its Incorporation;

38. IV. NEED FOR A REVISION OF THE CONVENTION, ADDITION OF A PROTOCOL – OR WILL MERE EXPLANATORY NOTES SUFFICE? (3) The Guiding Principles under these laws, in particular the functional equivalent approach media neutrality, non discrimination of electronic signatures and integrity; and

39. IV. NEED FOR A REVISION OF THE CONVENTION, ADDITION OF A PROTOCOL – OR WILL MERE EXPLANATORY NOTES SUFFICE? (4) The Guiding Principles of the Convention of 1961, in particular its simplicity and legal security as to the limited effects of an Apostille.”

40. IV. NEED FOR A REVISION OF THE CONVENTION, ADDITION OF A PROTOCOL – OR WILL MERE EXPLANATORY NOTES SUFFICE? • (2) Negotiate a Protocol with certain substantive rules • Aside from the principles taken from the Model Laws and the Convention, a Protocol which would include certain substantive rules to address particular legal issues could be envisaged.

41. IV. NEED FOR A REVISION OF THE CONVENTION, ADDITION OF A PROTOCOL – OR WILL MERE EXPLANATORY NOTES SUFFICE? • This would have the purpose of complementing the general guidelines in matters such as minimum security requirements for electronic transmissions and the criteria for the reliability of electronic signatures.

42. IV. NEED FOR A REVISION OF THE CONVENTION, ADDITION OF A PROTOCOL – OR WILL MERE EXPLANATORY NOTES SUFFICE? • (3) Preparation of an Explanatory Note and/or a Manual (Practical Handbook) • The Explanatory Note and/or Manual (as suggested by the Special Commission of 2003) would address the legal and technical questions raised by electronic public documents and e-Apostilles and would be accompanied by comments on the practical operation of the Convention in general.

43. IV. NEED FOR A REVISION OF THE CONVENTION, ADDITION OF A PROTOCOL – OR WILL MERE EXPLANATORY NOTES SUFFICE? • However one could also recognize that modern technology has rendered the application of the Apostille Convention marginal if not obsolete. Thus another possibility exists, at least in theory:

44. IV. NEED FOR A REVISION OF THE CONVENTION, ADDITION OF A PROTOCOL – OR WILL MERE EXPLANATORY NOTES SUFFICE? • (4) Abolishing legalisation and the Apostille for electronic public documents • (23) Which of the suggested approaches do you find most appropriate? Or do you have other suggestions, such as allowing each State to interpret the application of the Convention to electronic public documents and signatures in accordance with its own law?