On March 8, 2023, China deposited an instrument for accession to the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (also known as the “Apostille Convention”). Upon the scheduled implementation of the Apostille Convention in China on November 7, 2023, the expensive and time-consuming consular legalisation procedure that foreign documents must undergo in order to be formally recognized in China will be abolished. Instead, a simplified process should be available for obtaining an “Apostille Certificate” issued by a designated authority in the state where the document was executed (the “State of Origin”).
In the course of trademark and patent prosecution, as well as in IP related administrative and civil disputes, certain formality documents such as a Power of Attorney (“PoA”) and Certificate of Good Standing are often required. However, foreign documents have to undergo a notarization and legalization process to be accepted by Chinese authorities or courts. The whole process can take several months, and during the COVID lockdowns we also saw temporary closures of some embassies, causing further delays to the whole process. Once the Apostille Convention enters into force in China in November this year, foreign documents can be authenticated in China by attaching to it an Apostille Certificate issued by the State of Origin, thereby substantially saving time and costs. In some contracting parties, an e-Apostille is also available, which should further expedite matters.
It is worth noting that the Apostille Convention only applies to public documents, including official documents and notarial acts. Provided that notarized PoAs and company registry extracts qualify as “public documents” under PRC law, these should benefit from the simplified procedure under the Apostille Convention and thereby greatly reducing the formality burden for foreign business owners seeking to register or enforce their IP in China.
