Pursuing legal action against international accounts requires making sure your documents will be accepted in a foreign court. Here's what you need to know.
Foreign Legalization of Public Documents
by David Greenberg
Assistant Vice President, International Collections
Originally published: February 27, 2011
Typically, when pursuing international collections requiring legal action, the creditor will have to "legalize"
certain documents before they are acceptable to the courts in the debtor?s country.
Legalization is a process whereby the authority of a Notary Public in the creditor?s country is authenticated by an
authorized authority from the debtor?s country.
Why is such a step necessary? The seal of a Notary Public can be verified as true and in force in the country in
which it is issued. However, how would a court in France know that the seal of a California, USA Notary Public is
genuine? It would be nearly impossible for that French court to maintain accurate lists of qualified Notaries in
the United States or worldwide. Yet, it is critical for that court to have means of verification if it is to ensure that
documents presented are authentic.
There are basically two mechanisms established to legalize foreign documents for international purposes:
Legalization by Consular Stamp. The Consulate of the country requiring the legalization affixes a stamp to the
document ensuring its authenticity.
Legalization by Apostille. An apostille is a special stamp issued by a competent authority in each country that is
responsible for ensuring the credentials of Notary Publics in that jurisdiction. The Hague Convention Abolishing
the Requirements of Legalization for Foreign Public Documents (Convention #12), originally ratified in 1961
provides for this method of document legalization. The apostille is a preprinted form prescribed by the
Convention. However, only nations that are signatories to the Hague Convention will recognize apostille
Basic Legalization Process
A creditor with a collection claim against a foreign debtor might be required to legalize an Affidavit, Power of
Attorney, or other such form. The process is as follows:
? The creditor signs the form in the presence of a Notary Public.
? The creditor sends the Notarized form to either a) the competent authority specified in the 1961 Hague
Convention, or b) the Consulate (usually) of the country where the debtor is located.
? The appropriate authority affixes either the Consulate Stamp or Apostille to the document. It is then
returned to the creditor, who forwards it to the firm/attorney handling the collection case.
States that have not signed the Convention must specify how foreign legal documents can be certified for its use.
Some countries may have a special treaty concerning the recognition of each other?s documents, but usually this
is not the case.
Usually, when the country issuing or receiving the document does not recognize an apostille, the document
must be taken to the consulate of the foreign country. Before being accepted by the consular officer, it may
need to be certified by the highest government official in the country where it originated, such as the Secretary
of State or Minister of Foreign Affairs. This process is known as ?chain authentication?. It is so called because it
involves an unbroken chain of government officials each certifying the signature (and seal in some cases) of the
prior official in the originating country. Finally, the consular officer then certifies that the document should be
recognized as authentic in the country of destination. In most cases, the consular officer's signature can be
authenticated in the country of destination as well.
In the United States
The United States has been part of the 1961 Hague Convention since October 15, 1981.
Documents destined for use in participating countries and their territories should be certified by an official in the
jurisdiction in which the document has been executed. In the United States, apostilles are
usually affixed by the Secretary of State in each US state or territory. It may be necessary for an intermediary
official to affix a certification that the original signatory (notary or clerk) was authorized to sign the public
document. A list of U.S. State Authentication Authorities is found on the U.S. Department of State web site
Note: In the United States, fees for the apostille typically run between $5.00 and $25.00. We recommend that
creditors first call the competent authority to determine the cost of legalization prior to sending the document
to that authority. We also recommend that original Notarized or Legalized documents be transported only by
courier to ensure their safety in transit.
Canada is not a party to the 1961 Hague convention and Canadian documents cannot be certified with an
apostille. A combined process of "authentication" and "legalization" is the Canadian equivalent of "apostille
certificates" issued in other countries that are signatories.
Authentication is handled by both the Department of Foreign Affairs and International Trade (DFAIT) and
provincial authentication authorities, such as the Government of Ontario's Management Board Secretariat
(Official Documents) or the Official Documents and Appointments branch of Alberta's Department of Justice.
Whether DFAIT and the provincial authentication authority are both required to authenticate a document
depends entirely on the requirements of the recipient foreign country. Advice should be sought from that
country's embassy or consulate.
Authentication verifies the registration of a notary public as well as the notary's seal and signature. When a
request is made, DFAIT and/or the provincial authentication authority checks its records to confirm the notary's
registration. It then compares the notary seal and signature on the document being submitted against records it
holds of the notary's seal and signature. When the notary's authority, signature, and seal are confirmed, the
document to be authenticated receives a stamp (DFAIT) and/or an additional seal, together with a statement
from the provincial authentication authority stating that the notary is "known to be in good standing". Once this
process is completed, nothing may be added to or removed from the document.
After authentication, "legalization" occurs when the document is presented to the consulate of the relevant
foreign country for certification. At that point, the document normally acquires legal validity in the intended
country of use.
Treaty Obligations of Countries That Have Changed Status
According to the Hague Conference on Private International Law:
In accordance with Article 34(1) of the Vienna Convention on Succession of States in Respect of Treaties,
the U.S. view is that when a country which is a party to a multilateral treaty or convention has dissolved,
the successor state(s) inherit the treaty obligations of the former government, consistent with Article 34
of the Vienna Convention on Succession of States in Respect of Treaties.
However, as a practical matter, the custom is for depositaries to expect a notice of succession to confirm that
the new entity is performing its treaty obligations. Many newly independent states may not actually be
implementing such conventions at this time, in that they may not be performing the functions set forth in the
Convention. We continue to work with these governments and the depositories to obtain confirmation that the
respective successor state is complying with treaty obligations.
Keeping Track of Members
To find out which countries are parties to the Hague Legalization Convention check out the web site on the
Internet for the Hague Conference on Private International Law
(http://www.hcch.net/index_en.php?act=conventions.authorities&cid=41) for up-to-date information about
recent accessions to the Convention.
David Greenberg's collection industry experience spans three decades. Dave was instrumental in the expansion of
ABC-Amega?s international collections department and their earning of ?E? and ?E-Star? honors from the U.S.
President for excellence. He has served on the Panel of Commercial Arbitrators of the American Arbitration
Association and is a current member of the Commercial Law League of America and the Association of Executives
in Finance, Credit and International Business. Dave has traveled the world, giving educational presentations in
the areas of international arbitration, foreign documentation, and credit reporting management.
This information is provided by ABC-Amega Inc. for informational purposes only and is not intended to be legal
advice and is not a substitute for competent legal advice on the referenced subject. ABC-Amega Inc. provides 1st
and 3rd party commercial collection services since 1929 and collecting in more than 200 countries worldwide, For
further information, contact email@example.com or visit www.abc-amega.com.
1100 Main Street Buffalo, NY 14209