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Wednesday, September 19, 2012

Apostilles - What are they and what are they for?

1.         An apostille is an international certification that authenticates the origins of a public document. (See The Hague Convention Abolishing the Requirement for Legalization for Foreign Public Documents, Oct. 5, 1961, 33 U.S.T. 883, 527 U.N.T.S. 189 (the “Hague Convention”)).
2.         The purpose of the Hague Convention is ...

... to facilitate the circulation of public documents issued by a country party to the Hague Convention that are to be used in another country also party to the Convention.
3.         Public Documents under the Hague Convention include: (a) documents emanating from an authority or an official connected with the court or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process server; (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.
4.         An apostille does not certify the enforceability or authenticity of the underlying document for which it was issued. When properly filled in, it will 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. An apostille is not valid for use in the country in which it was issued.
5.         A public document can only be apostilled by the relevant competent authority of the country that issued the document. The U.S. has three tiers of authorities competent to issue the apostille certificate: (a) the U.S. Department of State Authentication Office affixes apostilles to documents issued by Federal agencies of the United States; (b) the Clerks and Deputy Clerks of the Federal Courts of the United States are authorized to issue apostilles on documents issued by those courts or, as an alternative, the U.S. Department of Justice may authenticate the seal of the Federal court and the U.S. Department of State Authentications Office will then place an apostille over that seal; and (c) public documents issued by U.S. states, the District of Columbia and other U.S. jurisdictions may be legalized with an apostille by designated authorities in each jurisdiction, generally the state Secretary of State’s office.  The California Secretary of State, for instance, authenticates signatures only on documents issued in the State of California signed by a notary public or the following public officials and their deputies: County Clerks or Recorders, Court Administrators of the Superior Court, Executive Clerks of the Superior Court, Officers whose authority is not limited to any particular county, Executive Officers of the Superior Court, Judges of the Superior Court, and State Officials. In Mexico, federal public documents are apostilled by the Secretary of State and there are 32 competent authorities designated to issue apostilles for state documents.
Mauricio Leon de la Barra is an international law attorney licensed to practice law in Mexico and California, and has more than 15 years of experience representing clients in cross-border business and real estate transactions and litigation involving international, U.S. and Mexican laws.