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08. Department of State letter regarding electronic records and formality of apostille (July 9, 2004)


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United States Department of State

Washington, D.C. 20520

July 9, 2004

 

Dear Mssrs. Ethridge and Reynolds

 

In preparation for the 2004 annual conference of the National Association of Secretaries of State (NASS) and Notary Public Administrators (NPA), the United States Department of State is taking this opportunity to provide your members with information concerning U.S. treaty obligations under the Hague Convention Abolishing the Requirement for Legalization of Foreign Public Documents.

 

In particular, this letter addresses the obligation to keep an index file or electronic register of all Apostille certificates issued, the method by which an Apostille is to be affixed to the document to be authenticated, and the requirement that each Apostille be individually numbered.

 

 

 

 

Bru Ethridge

President

Notary Public Administrators

National Association of State Secretaries of State

Secretary of State - Annex Office

202 N. Carson Street

Carson City, NV 89701-4201

 

Leslie Reynolds

Executive Director

National Association of Secretaries of State

Hail of States

444 N Capitol St., NW

Suite 401

Washington, DC 20001


 

2

 

 

We would appreciate it if you could circulate this information to all the Secretary of State offices. We also look forward to discussing these issues with you at the Annual Conference which will be held later this month in New Orleans.

 

 

BACKGROUND

 

When the United States became a party to the Hague Legalization Convention in December 1980, we were obliged to inform the Hague Conference on Private International Law and the Government of the Netherlands, the official depository for the treaty, what authorities the United States intended to designate as competent to issue and affix the Apostille certificate. The United States declared that documents issued by Federal agencies would be affixed with the Apostille certificate by the U.S. Department of State Authentications Office. Clerks and deputy clerks of US. Federal courts would affix Apostillles on documents issued by federal courts. Documents originating in the states, territories and other jurisdictions of the United States, and the District of Columbia would be affixed with the Apostille by a designated official, generally the Secretary of State of the individual U.S. state or other jurisdiction.

 

When the United States acceded to the Convention, the Office of the Legal Adviser for Private International Law of the U.S. Department of State wrote to each state or other jurisdiction explaining the requirements of the Hague Legalization Convention. The full text of the Convention is available at http://www.hcch.net/e/conventions/menu12e.html, where you will also find a model of the Apostille certificate. A copy of that letter is hereby attached for reference.

 

The Hague Conference on Private International Law convened the first Special Commission on the Operation of the Hague Legalization Convention October 28 - November 4, 2003 at The Hague in the Netherlands. In preparation for this meeting, each country party to the treaty was asked to complete a questionnaire and provide information on the operation of the Convention. NPA provided extremely helpful information on the practices and procedures in US, states and other jurisdictions. Copies of the materials developed in preparation for the Special Commission are available on the Hague Conference web site at http://www.hcch.net/e/worprog/lse_intro.html.

 

The United States delegation included two NPA representatives: Debbie Pester (Nebraska), NPA Secretary and Tom Wrosch (Oregon), NRA Past President. They contributed greatly to the success of the Special Commission, especially with regard to their insights about electronic signatures, record keeping and other developments.

 

Examination of practice under the “Apostille Convention” confirmed its very wide use and effectiveness, as well as the absence of any major practical obstacles. Many of the questions put to U.S. Department of State speakers at the Annual NPA Conferences in 2002 and 2003 were addressed at the Special Commission and included in the Conclusions and Recommendations of the Special Commission. Those Conclusions and Recommendations are available at http://www.hcch.net/e/workprog/lse intro.html.

 

INDEX FILE OR ELECTRONIC REGISTER

 

Article 7 of the Convention provides that, each of the authorities designated in accordance with Article 6 shall keep a register or card index in which it shall record the certificates issued, specifying:

 

a) the number and date of the certificate;

 

b) the name of the person signing the public document and the capacity in which he (she) has acted, or in the case of unsigned documents, the name of the authority which has affixed the seal or stamp;

 

The Convention also states that at the request of any interested person, the authority which has issued the Apostille certificate shall verify whether the particulars in the certificate correspond with those in the register or card index. These provisions were written when the Convention was concluded October 5, 1961, and we appreciate that most U.S. states or other jurisdictions now maintain electronic records. The Special Commission of the Hague Conference specifically approved the use of electronic registries in its conclusions of November 4, 2003:

 

“The Special Commission emphasized that the use of information technology (IT) could have a positive impact on the operation of the Convention, in particular through lowering costs and increasing the efficiency of the creation and registration of Apostilles.”

The Special Commission recommended that Apostilles conform as closely as possible to the Model Certificate (available at http://www.hcch.net/e/conventions/textl2e.html). This is particularly important where electronically or non-manually reproduced signatures are used. In this respect, the Special Commission underlined the important role that the register could play in resolving any doubt concerning the authenticity of an Apostille.

 

Regarding the issue of retention and disposal of records in a register or card index established under Article 7, the Special Commission did not suggest a minimum period during which records in a register should be kept. It concluded it was a matter for each state party to develop objective criteria. We believe you should establish reasonable record retention policies with respect to Apestilles, that would permit reference to the register or card index for several years after an Apostille is issued. The Special Commission agreed that holding information in an electronic form would assist this process by making it easier to store and retrieve records.

 

FORM OF AN APOSTILLE AND HOW TO AFFIX IT

 

The dimensions of the Apostille certificate may vary. The Special Commission concluded that “variations in the form of an Apostille among issuing authorities should not be a basis for rejection as long as the Apostille is clearly identifiable as an Apostille issued under the Convention.”

 

The Special Commission noted the variety of means for affixing Apostilles to the public document. These means may include a rubber stamp or glue. For an “allonge” (an Apostille printed on a separate piece of paper to be attached to the document to be authenticated), multi-colored ribbons, wax seals, impressed seals, self-adhesive stickers, are permissible, and they may be attached by glue, grommets, staples, etc. The Special Commission noted that all these means are acceptable under the Convention, and that, therefore, these variations cannot be the basis for the rejection of Apostilles. As regards Apostilles to be issued for a multi-page document, the Special Commission recommended that the Apostille be affixed to the signature page(s) of the document when using an allonge the Apostille may be affixed to the front or the back of the document. The Special Commission stressed that Apostilles may not be refused in a State of production on the grounds that they do not comply with that State’s national formalities and modes of issuance.

 

Nevertheless, we must stress for you that as a practical matter, many foreign courts expect to see Apostilles attached with a fair degree of formality. To the extent that pre-printed Apostilie allonges are used, it is essential that you consider using special anti-fraud watermarked paper, stick-on gold seals, and/or wet signatures, and that you employ a staple or grommet system that is fraud-resistant. All Apostilles and allonges should be permanently affixed to the public document by the state issuing authority and not by the customer.

NUMBERING OF APOSTILLES

 

One practice of some U.S. states concerning numbering of Apostiilles has led to serious problems. The Convention requires that all Apostilles must be numbered consecutively, with individual numbers applied for each apostille issued. Group or bulk numbers per customer rather than per document are not acceptable, and will be rejected by many countries. Russia, in particular, has notified the U.S. Department of State that it will not accept Apostilles that are not individually numbered.

 

MISCELLANEOUS

 

The United States Department of State must submit to the Hague Conference on Private International Law a current listing of authorities in the United States competent to issue and affix the Apostille certificate. The address information on the NPA home page is very helpful in this regard and we intend to recommend that the Hague Conference include a direct link to the NPA site,

http://www.nass.org/NPA/us/United States.htm. The Office of the Legal Adviser for Private International Law, the Office of Policy Review and Inter-Agency Liaison for Overseas Citizens Services in our Bureau of Consular Affairs and the U.S. Department of State Authentications Office are all represented on the NPA listserve and we find it a very useful vehicle to keep ourselves informed about developments. In addition, please feel free to direct inquiries to our collective e-mail addresses: ASKPRI@state.gov; kovarjd@state.gov; AOPRGSMAUTH@STATE.GOV.

 

The Special Commission concluded with a recommendation to the Hague Conference on Private International Law that a “Good Practice Guide” on the operation of the Hague Legalization Convention be developed, including country profiles about individual state practices, case law and other materials. Your information about state law, regulation and practice would be invaluable as we develop the United States submissions.

 

Should you have any questions, please do not hesitate to contact Monica A. Gaw of this Office at (202) 736-9107.

 

 

 

Sincerely,

 

 

 

 

Edward A. Betancourt

Director

Office of Policy Review and Inter-Agency Liaison

Overseas Citizens Services

Bureau of Consular Affairs

 

Enclosures:

 

As stated


 

DEPARTMENT OF STATE

Washington, D.C.

 

 

 

 

October 8, 1981

 

 

 

 

I would like once more to remind you that the 1961 Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents will come into force for the United States on Thursday, October 15, 1981. As you know, this Convention has been the subject of three prior letters from the Department of State intended to notify the States and other territories of the United States about the Convention and urging them to take the necessary steps to make possible its smooth implementation throughout the United States.

 

Enclosed for your information is a revised list (Status:

September 15, 1981) of the twenty—eight countries that are parties to the Convention. Also enclosed is a list (Status: October 1, 1981) of the authorities in those twenty-eight countries that are competent to issue the Convention certification (apostille) on the basis of which documents so certified are en­titled to recognition under the Convention, as a matter of treaty law, without any further legalization or authentication. These lists are provided to permit you to reply to inquiries that you may receive from private parties concerning this convention.

The National Association of Secretaries of State, the National Notary Association, the National Bankers Association and the Bureau of National Affairs (BNA) for its publication “Patent, Trademark and Copyright Journal” have all been notified of the Convention, its benefits and the role of the States and territories in its implementation. All these organizations either have already published or will publish notices concerning the Convention. You may therefore wish to anticipate inquiries as to how your State or territory will be implementing the Convention.


 

—2—

We are aware that a. number of States and territories have

printed blank apostille forms for use by the designated com­petent officials in certifying in the manner provided by the Convention those documents destined for use in a country that is one of the twenty—eight others that are parties to the Convention. Those States and territories that have not made such preparations may wish to do so without delay in order not to be in the position as of October 15 of denying the full bene­fits of the Convention to persons wishing to use documents abroad originating in their jurisdiction. In this connection, the enclosed copy of a blank apostille in the form that this Department will use may be helpful to you.

 

Should you be unable to answer inquiries directed to your office, please have your office make those inquiries to the Department for reply (telephone (202)632—8124) rather than suggesting that the inquiring party direct the inquiry to the State Department. By having your office obtain the answer, it will then be able to answer future questions directly. It is our hope that once the Convention has been in force for the United States for a few months all inquiries will be handled at the State Government level. In view of the role that the State and territorial governments are playing in both issuing Convention certifications (apostilles) and ensuring that documents covered by apostille from the twenty—eight countries party to the convention receive the recognition to which they are entitled, it appears only logical that they should be able to answer questions raised by lawyers and others in their jurisdiction.

 

Let me close by thanking you for your cooperation in help­ing the Department ensure that this convention is implemented throughout the United States in a uniform and coordinated manner.

 

Sincerely yours,

 

 

Peter H. Pfund

Assistant Legal Adviser for

Private International Law

 

Enclosures:

 

--List of countries party to the Convention

(Status: September 15, 1981)

—List of foreign authorities

competent to issue the Convention

apostille (Status: October 1, 1981)

--Blank Department of State apostille

form



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